81 FR 78497 - Career and Career-Conditional Employment

OFFICE OF PERSONNEL MANAGEMENT

Federal Register Volume 81, Issue 216 (November 8, 2016)

The U.S. Office of Personnel Management (OPM) is issuing a final rule on creditable service for career tenure. The final regulation removes the requirement for creditable service to be substantially continuous and instead allows an individual to attain career tenure after completing at least 3 years of total creditable service.

[Federal Register Volume 81, Number 216 (Tuesday, November 8, 2016)]
[Rules and Regulations]
[Pages 78497-78499]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-26888]



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Rules and Regulations
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Federal Register / Vol. 81, No. 216 / Tuesday, November 8, 2016 / 
Rules and Regulations

[[Page 78497]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 315

RIN 3206-AM64


Career and Career-Conditional Employment

AGENCY: U.S. Office of Personnel Management.

ACTION: Final rule.

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SUMMARY: The U.S. Office of Personnel Management (OPM) is issuing a 
final rule on creditable service for career tenure. The final 
regulation removes the requirement for creditable service to be 
substantially continuous and instead allows an individual to attain 
career tenure after completing at least 3 years of total creditable 
service.

DATES: Effective December 8, 2016.

FOR FURTHER INFORMATION CONTACT: Cathy Thornton by telephone at (202) 
418-4321; by TTY at (202) 418-3134; by fax at (202) 606-4430; or by 
email to [email protected].

SUPPLEMENTARY INFORMATION: On January 6, 2014, the Office of Personnel 
Management (OPM) proposed regulations at 79 FR 610 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 restart the 
3-year period if there is a break in service of more than 30 days.
    This final rule removes ``substantially continuous'' from the 
requirement for career tenure. Under this final rule, an individual may 
attain career tenure after completing at least 3 years of total 
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. This change also removes the basis for the 30-day break-in-
service rule. Because each period of creditable service would stand 
alone, breaks in service are now irrelevant.
    This final rule also makes conforming changes to section 315.201(b) 
and removes references to outdated and obsolete appointing authorities.

Comments

    OPM received 12 sets of comments in response to the proposed rule. 
Eleven individuals and one professional organization provided comments. 
All 11 individuals supported the proposed changes. A discussion of the 
comments follows.
    One individual suggested the final rule apply to term appointments. 
OPM is not adopting this suggestion because term appointments are not 
career or career-conditional appointments and thus do not count towards 
career tenure. However, creditable service for these purposes may 
include service on certain overseas limited term appointments under 5 
CFR part 301, in accordance with section 315.201(b)(1)(i), and certain 
term appointments served in accordance with 315.201(b)(3)(iv).
    Another individual asked how this rule will impact persons employed 
as overseas family members. For these purposes creditable service may 
begin, but not end, with an overseas limited appointment of indefinite 
duration or an overseas limited term appointment under 5 CFR part 301 
in accordance with Sec.  315.201(b)(1)(i).
    Another commenter suggested that the final rule allow time under 
excepted service appointments to count as creditable service towards 
the attainment of career tenure. OPM is not adopting this suggestion. 
Generally speaking, career tenure is acquired through service on a 
permanent appointment in the competitive service that provides or leads 
to competitive status. Excepted service appointments, in general, do 
not lead to or provide competitive status. However, for these purposes 
creditable service may begin with an excepted service appointment that 
leads to non-competitive conversion to the competitive service. Readers 
can find a list of qualifying excepted service appointments in 5 CFR 
315.201(b).
    One commenter asked that OPM consider similar rules for purposes of 
annual leave accrual. OPM is not adopting this suggestion because it is 
the beyond the scope of the proposed rule.
    The professional organization provided a comment pertaining to 
suicide prevention, which was beyond the scope of the proposed rule.
    OPM is adopting the proposed rule as final without any changes.

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.
Beth F. Cobert,
Acting Director.

    Accordingly, OPM amends 5 CFR part 315 as follows:

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).

[[Page 78498]]

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, an overseas 
limited appointment of indefinite duration, or an 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 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.

[[Page 78499]]

    (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 is also 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. 2016-26888 Filed 11-7-16; 8:45 am]
 BILLING CODE 6325-39-P