[Federal Register Volume 79, Number 3 (Monday, January 6, 2014)]
[Proposed Rules]
[Pages 610-613]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-31499]


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 OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 315

RIN 3206-AM64


Career and Career-Conditional Employment

AGENCY: U.S. Office of Personnel Management.

ACTION: Proposed rule.

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SUMMARY: The U.S. Office of Personnel Management (OPM) is proposing to 
change the regulations on creditable service for career tenure. The 
proposed regulation removes the requirement for creditable service to 
be substantially continuous. This change will assist individuals who 
leave Federal service before meeting the requirement and subsequently 
return to a qualifying appointment.

DATES: We will consider comments received on or before March 7, 2014.

ADDRESSES: Send or deliver comments to Kimberly A. Holden, Deputy 
Associate Director for Recruitment and Hiring, Employee Services, U.S. 
Office of Personnel Management, Room 6551, 1900 E Street NW., 
Washington, DC, 20415-9700; email to employ@opm.gov; or fax to (202) 
606-2329. Comments may also be sent through the Federal eRulemaking 
Portal at http://www.regulations.gov. All submissions received through 
the Portal must include the agency name and docket number or the 
Regulation Identifier Number (RIN) for this rulemaking.

FOR FURTHER INFORMATION CONTACT: Pam Galemore by telephone at (202) 
606-0960; by TTY at (202) 418-3134; by fax at (202) 606-2329; or by 
email at pamela.galemore@opm.gov.

SUPPLEMENTARY INFORMATION: The U.S. Office of Personnel Management 
(OPM) is proposing to revise part 315, title 5, Code of Federal 
Regulations (CFR), to change the criteria for career tenure in the 
Federal competitive service. The current regulations require an 
employee to serve a 3-year period of substantially continuous 
creditable service to attain career tenure. With certain exceptions, 
the current regulations also require a career-conditional employee who 
separates from Federal service to re-start the 3-year period if there 
is a break in service of more than 30 days.
    OPM is proposing to change the requirement from 3 years of 
substantially continuous service to at least 3 years of total 
creditable service (whether or not continuous). This change will remove 
the basis for the 30-day break-in-service rule. Under the proposed 
rule, each period of creditable service would stand alone, so breaks in 
service would be irrelevant.
    In the Federal competitive service, tenure is important for the 
purposes of reinstatement eligibility and retention standing in a 
reduction in force (RIF). An employee who separates from the Federal 
service with career tenure, or a veterans' preference eligible who 
separates with career-conditional tenure, has lifetime reinstatement 
eligibility. Generally, a non-veterans' preference eligible employee 
who separates with career-conditional tenure has only 3 years of 
reinstatement eligibility from the date of separation. (Reinstatement 
eligibility means the individual does not have to re-compete with the 
general public for a future competitive service appointment.) An 
employee with career tenure also has higher retention standing in a RIF 
than a career-conditional employee. (RIF is the regulatory process an 
agency uses when it must reduce the number of positions in its 
workforce, for example, due to budget constraints. The higher an 
employee's retention standing, the more opportunities the employee may 
have to keep a Federal job under RIF procedures.)
    OPM is proposing to revise the regulations in response to an issue 
raised by the Department of the Army in relation to military spouses. A 
Federally employed spouse may have to resign his/her appointment to 
accompany a military ``sponsor'' (in this context, meaning a spouse who 
is serving in the military) when the sponsor must relocate under 
permanent change of station (PCS) orders. Many spouses are unable to 
obtain another Federal job within the 30-day break period. The 30-day 
break requirement left these spouses at a disadvantage in attaining 
career tenure. When reemployed, they have to re-start the 3-year 
period, basically resulting in a perpetual career-conditional tenure 
status due to the constant PCS movement of their spouses.
    In response to the issues raised by the Department of the Army, OPM 
decided to review not only the 30-day break requirement, but also the 
basis for the

[[Page 611]]

``substantially continuous'' creditable service requirement for career 
tenure. We have determined that the ``substantially continuous'' 
requirement is no longer appropriate in today's employment environment.
    The ``substantially continuous'' requirement has been in place 
since the career-conditional system was established in the mid-1950s. 
The rationale for the requirement was that 3 years was an appropriate 
amount of time to determine an employee's interest in and commitment to 
the career Federal service, as well as the Government's ability to 
provide reasonable assurance of continued employment opportunities. OPM 
believes this reasoning no longer applies in today's work environment. 
Individuals in today's workforce may change jobs, including between the 
Federal and private sectors, throughout their careers and are more 
mobile than in previous generations. OPM believes both sectors can 
benefit from the experiences gained from the other so individuals 
should not be penalized if they choose to or must, as circumstances 
dictate, leave Federal service before meeting a substantially 
continuous service requirement. We believe 3 years in the aggregate--
even if not continuous--is sufficient to demonstrate an interest in 
Federal service that warrants granting an individual career tenure.
    Therefore, OPM is proposing to change 5 CFR 315.201(a) to remove 
``substantially continuous'' from the requirement for career tenure. 
Under this change, an individual may attain career tenure after 
completing at least 3 years of creditable service as described in 
section 315.201(b). Each period of creditable service would stand 
alone. Once the employee accumulates 3 years of creditable service, he/
she would be converted to career tenure.
    We also are proposing to revise section 315.201(b) to reflect this 
change and to remove references to outdated and obsolete appointing 
authorities. The introductory text of section 315.201(b) is reworded 
but would continue to specify that creditable service for career tenure 
must include service described in section 315.201(b)(1). We also are 
removing some repetitive verbiage from the introductory text.
    Section 315.201(b)(1) specifies that the 3 years of creditable 
service must begin with one of the nontemporary appointments listed in 
paragraphs (i) through (xvi) of section 315.201(b)(1).
    Section 315.201(b)(1)(i) describes the qualifying nontemporary 
appointments in the competitive service that begin eligibility for 
career tenure. This paragraph retains career-conditional appointment 
and status quo employment as qualifying beginning appointments. We 
removed ``reinstatement'' and ``transfer'' as beginning appointments 
because the 30-day break rule no longer applies under the proposed 
change; therefore, neither a reinstatement nor a transfer will begin a 
3-year period of service as it does under the current regulations. The 
proposed revision of paragraph (b)(1)(i) would consolidate the list of 
obsolete appointing authorities by incorporating certain items that 
were previously listed in separate paragraphs under section 
315.201(b)(1), including certain excepted appointments before 1955 and 
temporary appointments pending establishment of a register. We are also 
revising the relevant paragraphs under section 315.201(b)(1) to reflect 
the July 10, 2012, effective date of the Pathways regulations in 5 CFR 
parts 213 and 362.
    Other proposed revisions to paragraphs under section 315.201(b)(1) 
reflect statutory or regulatory changes that have occurred since the 
last revision to this section, for example, in (b)(1)(iii) to add 
nonappropriated fund positions in the U.S. Coast Guard under the 
Department of Homeland Security and in (b)(1)(viii) to change the name 
of the Postal Rate Commission to the Postal Regulatory Commission. 
Proposed paragraph (b)(1)(ix) revises the text to conform to proposed 
regulations published in the Federal Register on February 7, 2012 (77 
FR 6022) pertaining to the appointment of persons with disabilities.
    We are revising section 315.201(b)(2), Competitive status, to 
clarify that an individual may attain career tenure only when employed 
(or reemployed) in a permanent appointment in the competitive service 
that provides or leads to competitive status.
    We are removing section 315.201(b)(3), Substantially continuous 
service, and redesignating the remaining paragraphs in section 
315.201(b). The current regulation to begin a new 3-year period after a 
break in service of more than 30 days will not apply under the proposed 
rules removing the ``substantially continuous service'' requirement.
    We are revising section 315.201(b)(4)(i)(B) (redesignated as 
section 315.201(b)(3)(i)(B) in the proposed rule) to refer agencies to 
OPM's Guide to Processing Personnel Actions to convert intermittent 
days worked to calendar time. We are removing paragraph (b)(4)(i)(C) 
relating to part-time and intermittent service before July 1, 1962, 
because it is obsolete.
    In proposed section 315.201(b)(3)(ii)--the current section 
315.201(b)(4)(ii)--we are revising the text from passive to active 
voice. We are also proposing to update the regulation by adding a new 
paragraph (G) to specify that periods of nonpay status incident to an 
assignment under subchapter VI of chapter 33, title 5, U.S. Code, 
[Assignments To and From States (also known as the Intergovernmental 
Personnel Act)], are creditable service for career tenure.
    In what is currently section 315.201(b)(4)(iii), Restoration based 
on unwarranted or improper actions, which we are proposing to 
redesignate as section 315.201(b)(3)(iii), we are removing the obsolete 
paragraph (A), relating to findings made before March 30, 1966, that a 
furlough, suspension, or separation was unwarranted or improper.
    In proposed section 315.201(b)(3)(iv)--the current section 
315.201(b)(4)(iv), Intervening service-- we are removing from the 
introductory text the reference to breaks in service in excess of 30 
calendar days as obsolete under the proposed rule. Also, under 
paragraph (b)(4)(iv)(H) of section 315.201, regarding crediting service 
performed overseas by family members, we are removing the 180-day 
limitation for crediting such service. Under the proposed rule, each 
period of creditable service will stand alone, so breaks in service 
will be irrelevant.

E.O. 12866, Regulatory Review

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

Regulatory Flexibility Act

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

Paperwork Reduction Act

    The information collection requirements contained in this proposed 
rule are currently approved by the Office of Management and Budget 
under 3206-A120. This regulation does not modify this approved 
collection.

List of Subjects in 5 CFR Part 315

    Government employees.

U.S. Office of Personnel Management.
Katherine Archuleta,
Director.
    Accordingly, OPM proposes to amend 5 CFR part 315 as follows:

[[Page 612]]

PART 315--CAREER AND CAREER-CONDITIONAL EMPLOYMENT

0
1. The authority citation for part 315 continues 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. 13562. 
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. 11219, 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(c). Sec. 315.611 also issued under 5 U.S.C. 3304(f). 
Sec. 315.612 also issued under E.O. 13473. 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
2. In Sec.  315.201, revise paragraphs (a) and (b) to read as follows:


Sec.  315.201  Service requirement for career tenure.

    (a) Service requirement. A person employed in the competitive 
service for other than temporary, term, or indefinite employment is 
appointed as a career or career-conditional employee subject to the 
probationary period required by subpart H of this part. Except as 
provided in paragraph (c) of this section, an employee must serve at 
least 3 years of creditable service as defined in paragraph (b) of this 
section to become a career employee.
    (b) Creditable service. Unless otherwise approved by OPM, the 
service required for career tenure must include service as described in 
paragraph (b)(1) of this section and total at least 3 years.
    (1) Nontemporary employment. To be creditable, the 3 years of 
service must begin with one of the following:
    (i) Nontemporary appointment in the competitive service. For this 
purpose, nontemporary appointment includes a career-conditional 
appointment. The 3 years may also begin, but not end, with status quo 
employment under subpart G of part 316 of this chapter, and overseas 
limited appointment of indefinite duration or overseas limited term 
appointment under part 301 of this chapter. The 3 years also may have 
begun with permanent employment under now obsolete appointing 
authorities such as probational, war service indefinite, emergency 
indefinite, nontemporary appointment from a civil service register to a 
position in the excepted service before January 23, 1955, temporary 
appointment pending establishment of a register (also known as TAPER 
authority), nontemporary appointment to a position in the District of 
Columbia Government before January 23, 1955, and appointment based on 
Public Law 83-121. Determinations of whether an obsolete authority 
provides the basis for creditable service may be obtained from OPM;
    (ii) Nontemporary appointment to an excepted position, provided the 
employee's excepted position was brought into the competitive service 
and, on that basis, the employee acquired competitive status or was 
converted to a career-conditional appointment;
    (iii) Nontemporary appointment to a nonappropriated fund (NAF) 
position in or under the Department of Defense or in or under the U.S. 
Coast Guard, Department of Homeland Security, provided the employee's 
NAF position was brought into the competitive service and, on that 
basis, the employee acquired competitive status or was converted to a 
career or career-conditional appointment;
    (iv) Nontemporary excepted or nonappropriated fund appointment, 
Foreign Service appointment, or appointment in the Canal Zone Merit 
System, provided the employee is appointed to a competitive service 
position under the terms of an interchange agreement with another merit 
system under Sec.  6.7 of this chapter, under Executive Order 11219 as 
amended by Executive Order 12292, or under Executive Order 11171;
    (v) The date of appointment to a position on the White House Staff 
or in the immediate office of the President or Vice President, provided 
the service has been continuous and the individual was appointed to a 
competitive service position under Sec.  315.602 of this chapter;
    (vi) The date of nontemporary excepted appointment under Sec.  
213.3202(b) of this chapter (the former Student Career Experience 
Program) as in effect immediately before July 10, 2012, the effective 
date of the regulations removing that paragraph, provided the student's 
appointment was converted to a career or career-conditional appointment 
under Executive Order 12015 or under Executive Order 13562, with or 
without an intervening term appointment, and without a break in service 
of one day;
    (vii) The date of veterans recruitment appointment (VRA), provided 
the appointment is converted to a career or career-conditional 
appointment under Sec.  315.705 of this chapter, or the person is 
appointed from a civil service register without a break in service 
while serving under a VRA;
    (viii) The date of nontemporary appointment to the Postal Career 
Service or the Postal Regulatory Commission after July 1, 1971, 
provided the individual is appointed to a career or career-conditional 
appointment under 39 U.S.C. 1006;
    (ix) The date of nontemporary appointment under Schedule A, Sec.  
213.3102(u) of this chapter, of a person with an intellectual 
disability, severe physical disability, or a psychiatric disability, 
provided the employee's appointment is converted to a career or career-
conditional appointment under Sec.  315.709;
    (x) The date of appointment in the Presidential Management Fellows 
Program under the provisions of Executive Order 13318, provided the 
employee's appointment was converted without a break in service to a 
career or career-conditional appointment under Sec.  315.708 as in 
effect immediately before July 10, 2012, the effective date of the 
regulations that removed and reserved that section, or under Executive 
Order 13562;
    (xi) The starting date of active service as an administrative 
enrollee in the United States Merchant Marine Academy;
    (xii) Appointment as a career intern under Schedule B, Sec.  
213.3202(o) of this chapter, provided the employee's appointment was 
converted to a career or career-conditional appointment under Sec.  
315.712 as in effect immediately before July 10, 2012, the effective 
date of the regulations that removed and reserved that section;
    (xiii) The date of appointment as a Pathways Participant in the 
Internship Program under Schedule D, Sec.  213.3402(a) of this chapter, 
provided the employee's appointment is converted to a career or career-
conditional appointment under Sec.  315.713(a), with or without an 
intervening term appointment, and without a break in service of one 
day;
    (xiv) The date of appointment as a Pathways Participant in the 
Recent Graduates Program under Schedule D, Sec.  213.3402(b) of this 
chapter, provided the employee's appointment is converted to a career 
or career-conditional appointment under Sec.  315.713(b), with or 
without an intervening term appointment, and without a break in service 
of one day;
    (xv) The date of appointment as a Pathways Participant in the 
Presidential Management Fellows Program under Schedule D, Sec.  
213.3402(c) of this chapter, provided the employee's appointment is 
converted to a career or career-conditional appointment under Sec.  
315.713(c), with or without an

[[Page 613]]

intervening term appointment, and without a break in service of one 
day; and
    (xvi) Employment with the District of Columbia Government after 
January 1, 1980 (the date the District implemented an independent merit 
personnel system not tied to the Federal system), provided the person 
was a District employee on December 31, 1979, was converted to the 
District system on January 1, 1980, and is employed by nontemporary 
appointment in the competitive service.
    (2) Competitive status. An individual may attain career tenure only 
when employed (or reemployed) in a permanent appointment in the 
competitive service that provides or leads to competitive status.
    (3) Crediting service. An employee's creditable service must total 
at least 3 years, under the following conditions:
    (i) Work schedule. (A) Full-time service, and part-time service on 
or after July 1, 1962, are counted as calendar time from the date of 
appointment to date of separation.
    (B) Intermittent service on or after July 1, 1962, is counted as 1 
day for each day an employee is in pay status, regardless of the number 
of hours for which the employee is actually paid on a given day. 
Agencies should consult the ``260-Day Work Year Chart'' in OPM's Guide 
to Processing Personnel Actions to convert intermittent days worked to 
calendar time. The service requirement may not be satisfied in less 
than 3 years of calendar time.
    (ii) Nonpay status on the rolls and time off the rolls. An agency 
may not credit periods of nonpay status and time off the rolls except 
as follows:
    (A) Credit the first 30 calendar days of each period of nonpay 
status on the rolls during full-time employment, or during part-time 
employment on or after July 1, 1962. On this same basis, a seasonal 
employee receives credit for the first 30 calendar days of each period 
of nonduty/nonpay status. Nonpay status in excess of 30 days is not 
creditable.
    (B) Credit periods of nonpay status and time off the rolls incident 
to entry into and return from military service and return from defense 
transfer, provided the person is reemployed in Federal service during 
the period of his or her statutory or regulatory restoration or 
reemployment rights.
    (C) Credit periods of nonpay status and time off the rolls incident 
to transfer to and return from an international organization, provided 
the person is reemployed in Federal service under subpart C of part 352 
of this chapter.
    (D) Credit periods of nonpay status during which an employee was 
eligible to receive continuation of pay or injury compensation from the 
Office of Workers' Compensation Programs. Also credit periods of time 
off the rolls during which an employee was eligible to receive injury 
compensation from the Office of Workers' Compensation Programs, 
provided the person is reemployed under part 353 of this chapter.
    (E) Credit up to 30 calendar days for time off the rolls that 
follows separation by reduction in force of employees who are eligible 
for entry on the reemployment priority list under subpart B of part 330 
of this chapter, provided the person is reemployed in Federal service 
during the period of his or her reemployment priority.
    (F) Credit up to 30 calendar days for time off the rolls that 
follow involuntary separation without personal cause of employees who 
are eligible for a noncompetitive appointment based on an interchange 
agreement with another merit system under Sec.  6.7 of this chapter, 
provided the person is employed in the competitive service under the 
agreement during the period of his or her eligibility.
    (G) Credit periods of nonpay status incident to an assignment to a 
State, local, or Indian tribal government, institution of higher 
education, or other eligible organization provided the employee returns 
to a creditable appointment pursuant to an agreement established under 
subchapter VI of chapter 33, title 5, U.S.C., and part 334 of this 
chapter.
    (iii) Restoration based on unwarranted or improper actions. Based 
on a finding made on or after March 30, 1966, that a furlough, 
suspension, or separation was unwarranted or improper, an employee 
restored to duty receives full calendar time credit for the period of 
furlough, suspension, or separation for which he or she is eligible to 
receive back pay. If the employee is restored to duty at a date later 
than the original adverse action, credit for intervening periods of 
nonpay status is given in accordance with other provisions of this 
subsection. If the employee had been properly separated from the rolls 
of the agency before a finding was made that the adverse action was 
unwarranted or improper, the correction and additional service credit 
given the employee may not extend beyond the date of the proper 
separation.
    (iv) Intervening service. Certain types of service that ordinarily 
are not creditable are counted when they intervene between two periods 
of creditable service. Under these conditions, credit each period of 
service:
    (A) In the excepted service of the Federal executive branch, 
including employment in nonappropriated fund positions in or under any 
Federal agency;
    (B) Under temporary, term, or other nonpermanent employment in the 
Federal competitive service;
    (C) In the Senior Executive Service;
    (D) In the Federal legislative branch;
    (E) In the Federal judicial branch;
    (F) In the armed forces;
    (G) In the District of Columbia Government through December 31, 
1979. For an employee on the District rolls on December 31, 1979, who 
converted on January 1, 1980, to the District independent personnel 
system, credit also is given for service between January 1, 1980, and 
September 25, 1980. Otherwise, service in the District of Columbia 
Government on or after January 1, 1980, is not creditable as 
intervening service; and
    (H) Performed overseas by family members, as defined by Sec.  
315.608 of this chapter.
* * * * *
[FR Doc. 2013-31499 Filed 1-3-14; 8:45 am]
BILLING CODE 6325-39-P