Rule2022-26221
Temporary and Term Employment
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 1, 2022
Effective
January 3, 2023
Issuing agencies
Personnel Management Office
Abstract
The Office of Personnel Management (OPM) is issuing final regulations that would allow agencies to make term appointments in certain Science, Technology, Engineering, and Mathematics-related ("STEM-related") occupations for up to 10 years. OPM is issuing final regulations to provide agencies with greater flexibility to staff foreseeably long-term projects of a STEM-related nature when the need for the work is not permanent. 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 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 certain specialized knowledge, who may be interested in acquiring further skills and experience working on a project basis and would be less likely to pursue or accept a career position. This authority is not intended to be a substitute for regular agency hiring but is instead intended to be a supplement to existing hiring authorities that is targeted for longer-term projects that are not permanent in nature. This appointment authority provides no authority for noncompetitive conversion into a permanent competitive service position.
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<title>Federal Register, Volume 87 Issue 230 (Thursday, December 1, 2022)</title>
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[Federal Register Volume 87, Number 230 (Thursday, December 1, 2022)]
[Rules and Regulations]
[Pages 73623-73632]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-26221]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
========================================================================
Federal Register / Vol. 87, No. 230 / Thursday, December 1, 2022 /
Rules and Regulations
[[Page 73623]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 316
RIN 3206-AN92
Temporary and Term Employment
AGENCY: Office of Personnel Management.
ACTION: Final rule.
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SUMMARY: The Office of Personnel Management (OPM) is issuing final
regulations that would allow agencies to make term appointments in
certain Science, Technology, Engineering, and Mathematics-related
(``STEM-related'') occupations for up to 10 years. OPM is issuing final
regulations to provide agencies with greater flexibility to staff
foreseeably long-term projects of a STEM-related nature when the need
for the work is not permanent. 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 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 certain specialized knowledge,
who may be interested in acquiring further skills and experience
working on a project basis and would be less likely to pursue or accept
a career position. This authority is not intended to be a substitute
for regular agency hiring but is instead intended to be a supplement to
existing hiring authorities that is targeted for longer-term projects
that are not permanent in nature. This appointment authority provides
no authority for noncompetitive conversion into a permanent competitive
service position.
DATES: This rule is effective January 3, 2023.
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
<a href="/cdn-cgi/l/email-protection#b4f9ddd7dcd1d8d8d19af3d8cddadaf4dbc4d99ad3dbc2"><span class="__cf_email__" data-cfemail="7835111b101d14141d563f1401161638170815561f170e">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Responses to Comments on the Proposed Rule
On September 14, 2020, the Office of Personnel Management (OPM)
published proposed regulations in the Federal Register at 85 FR 56536
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 at part 316 of title 5, Code of
Federal Regulations (CFR). OPM received 12 comments on the proposed
rule: four from individuals, six from other commenters, and two sets of
comments from two Federal Employees Unions.
Based on our review of the comments and upon further consideration,
OPM has decided to limit application of this ten-year term authority to
certain STEM-related occupations enumerated below. OPM's determination
is based on several factors.
<bullet> First, as illustrated by the public comments, the most
significant demand for the ten-year term authority is for STEM-related
occupations. This authority is an exception to current, long-standing
regulations, which require agencies to seek OPM authorization to make
initial appointments to terms that exceed four years, or to extend
initial four-year term appointments. Historically, OPM has received
very few requests for initial appointments beyond four-years. Based on
agency input, there is a growing demand for longer term appointments
tied to certain STEM-related projects. Accordingly, OPM has determined
that it will scope this authority to the most common demand expressed
by agencies--to support STEM-related projects that are time-limited in
nature but are expected to last beyond four years.
<bullet> Second, some of the public comments on the proposed
regulation argued that OPM should not move forward with this ten-year
term authority at all. Those comments expressed concerns about
potential for abuse or adverse effects on employees of widespread use
of this appointing authority. Though we are not aware of any documented
instances of abuse or adverse effects, we take seriously our role in
protecting merit system principles, and we appreciate the concerns
expressed in these comments. We therefore have decided that, because
this is a new delegation of authority, it is prudent to evaluate how it
will be applied to a subset of occupations--namely, STEM-related
occupations--before extending it further. The final rule therefore does
not include positions needed to stand-up, operate, and close-out time-
limited organizations which have a specific statutory appropriation or
positions related to time-limited projects which have been funded
through specific appropriation.
<bullet> Third, OPM views the new ten-year term authority as a
version of a delegation of authority to agencies. Currently, agencies
must seek authorization from OPM in advance of using initial term
appointments of more than four years or extending initial term
appointments beyond four years. A 2021 report of the National Academy
of Public Administration (NAPA), commissioned by Congress, recommended
(among other things) that OPM shift to a risk-based approach to human
resources transactions, which includes delegation of certain
transaction functions, subject to periodic OPM oversight. In
furtherance of this recommendation, we believe that an initial
delegation to agencies of the authority to make initial appointments of
up to ten years for certain STEM-related occupations is prudent. The
scope of these regulations will allow for a number of STEM-related
positions to be filled via term appointments of up to ten years, which
will allow OPM to evaluate agencies' use of the longer term appointment
authorities and the resulting impact on the Federal workforce. To date,
we are aware of no documented evidence of abuse of a similar authority
that the Department of Defense holds. Accordingly, delegating this
authority to agencies subject to OPM oversight is in line with the NAPA
report's recommendation of applying a risk-based approach to
delegations of transactional HR activities.
<bullet> Fourth, as indicated above, OPM has determined that
scoping this authority to certain STEM-related occupations is in the
best interests of
[[Page 73624]]
the efficiency of the service. In scoping this authority to those
occupations, we note that the nature of work can be project-based and
people performing those functions move among employers more regularly.
Because of the project nature of this work, the use of contractors by
Federal agencies is more prevalent in those fields. By expanding the
term appointment authority to ten years for STEM-related positions,
agencies will now have a more streamlined option to use Federal
employees, in addition to or instead of contractors, for longer-term
projects.
<bullet> Fifth, we note that even though we are narrowing the scope
of this authority from what was initially proposed, agencies continue
to have the ability to appoint employees for terms of up to four years,
and can request a longer initial term, or an extension, from OPM (see 5
CFR 316.301(b)). When an agency needs to request an initial term
appointment to fill a position or group of positions in excess of 4
years, the agency needs to provide OPM with the following information:
the position title(s); occupational series; and grade level(s); the
geographic location(s) of the position; a description of the work to be
performed by the position incumbent(s); and a statement explaining why
the agency expects the work to last longer than 4 years. The last item
should include any applicable timelines, the length of time the agency
expects the work to last, and any other information the agency believes
is relevant to its request. To further assist agencies, OPM intends to
develop guidance (i.e., templates) for agencies to use when submitting
their requests for an initial term appointment beyond the current 4-
year limitation. If we see an increased demand from agencies for longer
term appointments in occupations not covered by this final rule, and we
see no significant abuse or negative effects on the Federal workforce
from this delegation, we will consider expanding the scope of
occupations in the future.
Our responses to specific comments are below.
One individual commented that 10-year term appointments would
likely be of interest to political appointees desiring to ``burrow''
into the competitive service and recommends OPM expand its oversight
responsibilities with respect to political appointees, to include this
authority. While a political appointee is not excluded from fair
consideration for a non-political position in the Federal Government,
we agree with the suggestion to expand OPM's oversight and, upon
issuance of this regulation, OPM will amend its guidance to agencies
and add the requirement that review will be required before an agency
may place a political appointee in a position covered by this rule.
Additionally, OPM will conduct oversight of the 10-year term hiring
authority for certain STEM-related occupations, to ensure the
appropriate use and intent of this hiring authority. In addition,
Enterprise Human Resources Integration (EHRI) data will allow OPM to
review the number of term appointments made to the positions covered by
this authority.
Another individual requested OPM clarify whether agencies can use
this authority to fill positions in the Senior Executive Service (SES).
The 10-year term appointment authority is not available to fill
positions in the SES, as it applies only to covered positions filled in
the competitive service under 5 CFR part 316. Senior Executives are
appointed to the SES, which is separate from the competitive service
and the excepted service. See 5 U.S.C. 2101a, 2102, and 2103.
Another individual expressed concern over term employees' health
and safety, as well as their workload burden. This individual also
stated that term employees should have a basic right to health and
safety and an earned right to apply for any permanent position at any
time. The first comment is beyond the scope of this rulemaking as it
appears, in context, to be a specific complaint against the commenter's
employing agency that is not related to creation of a new 10-year term
appointment authority. With respect to permanent positions, term
appointees always have the right to apply for positions open to all
U.S. citizens, and nothing about the new 10-year term appointment
authority limits those rights. There is no right to a non-competitive
conversion to a permanent Federal job, as explained in 5 CFR part 316,
and we do not intend to change that rule for purposes of these
appointments, which are expressly intended to be time-limited
appointments designed for project work related to certain STEM-related
fields. We do note that some individuals hired under these rules may be
eligible for non-competitive conversion if they are subject to such
statutory provisions as the Land Management Workforce Flexibilities
Act, or 5 U.S.C. 3112 pertaining to disabled veterans.
One individual suggested OPM simplify the steps to renew multi-year
appointments, and that supervisors should be made aware of appointment
deadlines. This individual also asked whether employees appointed under
these rules would be eligible for promotion, and whether employees
could apply for permanent Federal jobs, and be considered as internal
agency employees when doing so. OPM is unclear as to whether these
comments were aimed at Federal contractors or Federal employees
appointed under 5 CFR part 316 because the individual referred to
employee ``contracts.'' To be clear, these rules apply to individuals
appointed under 5 CFR part 316 (i.e., Federal employees). OPM believes
the proposed rule on extending appointments is clear: ``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.'' The manner in which agencies choose to notify supervisors of
appointment deadlines is within the agencies' discretion and,
therefore, beyond the scope of these rules. Individuals serving on term
appointments under this authority may be promoted, in accordance with 5
CFR 335.102(e), provided the vacancy announcement specified the
possibility of promotion. In addition, under long-standing policy,
individuals may apply and be selected for new term appointments
following the expiration of their existing term. Lastly, as discussed
above, any term employee appointed under 5 CFR part 316 may apply for a
permanent position. In general, a term appointment (no matter the
duration) does not provide incumbents with competitive status in order
to be considered as an internal employee or a ``status'' candidate for
purposes of applying for a permanent position in the competitive
service.
Two commenters stated they concur without comments or
recommendations to the proposed rule.
Another commenter suggested OPM modify the proposed rule to allow
for a one-time extension (beyond the 10-year limit) by OPM for 1
additional year to accommodate time-limited organizations and/or time-
limited projects appropriated for additional funding by Congress. A
different commenter also commented it was unclear as to what type of
positions can be used for positions needed to stand-up, operate, and
close-out time-limited organizations which have specific statutory
appropriation, or time-limited projects which have been funded through
specific congressional appropriation.
These comments were based on OPM's proposal to allow agencies to
use the 10-year appointing authority for positions needed: to stand-up,
operate,
[[Page 73625]]
and close-out time-limited organizations which have a specific
statutory appropriation; or for time-limited projects which have been
funded through specific congressional appropriation.
As discussed above, however, OPM is not extending the use of this
appointing authority to those positions (unless the work to be
performed by a time-limited organization, or a time-limited project
funded through specific appropriations, requires the use of a covered
STEM-related position).
Two commenters recommended OPM define which positions are
considered STEM positions for purposes of these rules. OPM is adopting
this recommendation. OPM is limiting the use of this authority to fill
positions in the following STEM-related series and occupations:
positions in the Social Science Series, 0101, Economist Series, 0110,
Psychology Series, 0180; occupations in the Natural Resources
Management and Biological Sciences Group (i.e., 0400 group);
occupations in the Medical, Hospital, Dental, and Public Health Group
(i.e., 0600); occupations in the Physical Sciences group (i.e., 1300
group); occupations in the Engineering and Architecture group (i.e.,
0800 group); occupations in the Mathematical Sciences group (i.e., 1500
group); and occupations in the Information Technology group (i.e., 2200
group). These occupations are defined in OPM's Handbook of Occupational
Groups and Series at <a href="https://www.opm.gov/policy-data-oversight/classification-qualifications/classifying-general-schedule-positions/occupationalhandbook.pdf">https://www.opm.gov/policy-data-oversight/classification-qualifications/classifying-general-schedule-positions/occupationalhandbook.pdf</a>.
OPM has decided to make this new authority available to fill
positions in the above-listed occupations. As noted by these
commenters, agencies need clarity as to which positions are covered by
this new rule. And, as discussed previously, the strongest interest is
for occupations necessary to deliver STEM-related projects of a time-
limited nature. OPM assessed which particular occupations are most
necessary to supporting the delivery of these time-limited STEM-related
projects. While we recognize that any occupation in government could
arguably be connected in some way to STEM-related projects, we wanted
to tailor the rule to the most essential occupations. They include not
only positions that might generally be known as ``STEM'' occupations,
but also certain related occupations that are important to successful
delivery of STEM-related projects. Accordingly, the covered job series
and occupations in the final rule are those that OPM believes are most
necessary to STEM-related projects across the Federal landscape that
may entail work of a non-permanent duration lasting more than 4 years.
By tailoring this new authority to the occupations necessary to deliver
on longer-term STEM projects, the final rule carefully balances
competing interests by responding to commenters who have concerns about
the scope of the new authority while also offering agencies a new
authority for the circumstances where they expressed the greatest need.
A different commenter suggested OPM identify STEM positions by
series to limit confusion as to which occupational series are covered
under these rules, and further suggested that OPM should clarify
whether these rules apply only to STEM positions or also to positions
that support STEM positions. As noted, OPM is adopting this suggestion
and is limiting the use of this hiring to the Social Science Series,
0101, Economist Series, 0110, Psychology Series, 0180; and 6
occupational groups for positions in the 0400, 0600, 0800, 1300, 1500
and 2200 job series.
The same commenter asked OPM to clarify the types of situations in
which term appointments could be extended beyond 4 years without OPM
approval. Term appointments made pursuant to 5 CFR 316.301(a), i.e.,
for a period of more than 1 year but not more than 4 years, require OPM
approval in order to extend beyond 4 years in accordance with 5 CFR
316.301(b). Pursuant to this rulemaking and in accordance with 5 CFR
316.301(c), an agency may extend an appointment made for fewer than 10
years up to the 10-year limit in increments determined by the agency
without OPM approval. 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.
The same commenter asked OPM to clarify whether positions needed in
support of time-limited organizations or time-limited projects funded
by Congress filled under this authority are limited to STEM
occupations. As described above, OPM has decided to limit use of this
authority to the following positions: Social Science Series 0101,
Economist Series 0110, Psychology Series 0180, and the 0400, 0600,
0800, 1300, 1500 and 2200 occupational groups. The final rule
authorizes agencies to use this authority to fill positions needed in
support of time-limited organizations, or time-limited projects funded
by Congress only if the projects or work of the time-limited
organization requires the use of STEM-related covered position(s).
This commenter also recommended OPM clarify in the final rulemaking
that this authority may include positions with work in a variety of
professional and technical areas, including but not limited to:
environmental and biological sciences; medical, dental, and public
health; mechanical and biomedical engineering; information technology
and systems management; and actuarial and statistical mathematics. As
explained above the final rule applies to all positions in the Social
Science Series 0101, Economist Series 0110, Psychology Series, 0180,
and occupational groups 0400 (Natural Resources Management and
Biological Sciences Group), 0600 (Medical, Hospital, Dental, and Public
Health Group), 0800 (Engineering and Architecture Group), 1300
(Physical Sciences Group), 1500 (Mathematical Sciences Group), and 2200
(Information Technology Group). For positions not covered, OPM notes
that current rules in part 316 subpart C can be used to make initial
term appointments in excess of 4 years upon request and contingent on
OPM approval. As previously stated, OPM will develop guidance to assist
agencies with making requests for initial term appointments for more
than 4 years.
This commenter asked OPM to clarify the mechanism for agencies to
use in identifying a 10-year term appointment under these rules as
compared to the existing 4-year term appointments made under 5 CFR
316.301(a). This commenter asked if OPM will provide a new legal
authority and remark code to document the appointments under the 10-
year rule on the Standard Form (SF) 50. Appointments made under these
provisions are made pursuant to 5 CFR 316.301(c), while a 4-year term
appointment is made under 316.301(a). OPM will provide agencies with a
new legal authority code and instructions for documenting appointments
made under this delegation of authority.
The same commenter asked whether OPM intends to change 5 CFR
831.201(a)(14) to allow retirement benefits for term employees under
this authority. This comment is beyond the scope of this rulemaking
which pertains to the duration of term appointments. We do note that,
in general, term appointments are excluded from coverage under the
Civil Service Retirement System (CSRS) but, generally, are subject to
the Federal Employees Retirement System (FERS). OPM encourages readers
to visit: <a href="https://www.opm.gov/retirement-services/">https://www.opm.gov/retirement-services/</a> for more information
about
[[Page 73626]]
whether and how service under a term appointment is creditable for
purposes of Federal retirement.
The commenter also asked whether individuals hired under this
authority will be eligible for non-competitive conversion to a
permanent position in the competitive service. As noted above, in
general, individuals hired under this authority, or other term
appointments, are not eligible for non-competitive conversion to a
permanent Federal job. Only Congress, or the President by executive
order, can establish non-competitive entry into the competitive
service.
This commenter suggested OPM clarify that, if funding comes from
grants or industry resources (i.e., funded by non-Congressional
appropriations), this authority cannot be used to fill positions needed
to stand-up, operate, and close-out time-limited organizations; or for
time-limited projects. As stated previously, OPM is not extending this
authority to such positions (unless the work to be performed requires
the use of a covered STEM-related position).
Lastly, this commenter suggested no appointments should be extended
beyond the 10-year limit. OPM agrees with this comment. No appointments
made under this hiring authority can be extended beyond the 10-year
limitation.
A different commenter asked whether individuals currently serving
on term appointments pursuant to 5 CFR 316.301(a), i.e., not to exceed
4 years, could be extended for up to 10 years under these provisions.
The commenter asked whether a new job announcement would have to be
issued in order to retain individuals currently appointed under 5 CFR
316.301(a). The commenter also asked whether time spent on a current
term appointment (i.e., not to exceed 4 years), including any
extensions by OPM, would count against the 10-year limit under the 10-
year appointment rule. Appointments pursuant to 5 CFR 316.301(a), i.e.,
for a period of more than 1 year but not more than 4 years, cannot be
extended by these provisions. Four-year term appointments and 10-year
term appointments are two separate categories of term employment.
Agencies seeking to extend individuals beyond their 4-year limitation
must seek OPM approval in accordance with 5 CFR 316.301(b). An agency
seeking to fill a term position for up to 10 years in accordance with
these rules must advertise the position consistent with public notice
requirements and in accordance with 5 CFR 316.301(c). No appointment
may be extended beyond the 10-year limitation when making appointments
under the 10-year term hiring authority for certain STEM-related
positions.
The same commenter requested that OPM consider a regulatory change
that would allow for 10-year competitive temporary promotions. OPM is
not adopting this suggestion because it is beyond the scope of this
rulemaking.
The same commenter suggested OPM broaden the proposed rule to
include mission critical non-STEM-related occupations. OPM is not
adopting this proposal because we do not have evidence to support the
need for a 10-year term appointment covering any and all positions that
would be considered ``mission-critical.''
This commenter questioned whether it could identify highly
qualified applicants for positions filled under these rules. The agency
also noted that filling positions under this provision could create
retention issues, citing pay equity with other employment sectors as
well as the lack of permanent job security and retirement benefits as
potential challenges to retention. This authority is not intended to be
a substitute for regular agency hiring but is instead intended to
supplement existing hiring authorities. OPM proposed these rules to
assist agencies in attracting individuals to time-limited STEM-related
project work by giving agencies the option to offer an uninterrupted
term appointment of up to ten years. This longer-term appointment may
also assist agencies in recruiting individuals with specialized
knowledge who may find opportunities to work on a project-by-project
basis more attractive than the job duties of permanent positions. OPM
encourages agencies to explore the use of recruitment, relocation, and
retention incentives under 5 U.S.C. 5753 and 5754 and 5 CFR part 575,
subparts A-C; the General Schedule superior qualifications and special
needs pay-setting authority under 5 U.S.C. 5333 and 5 CFR 531.212; or
other similar authorities to address staffing difficulties in these
term positions where appropriate. For term positions under the General
Schedule, agencies may also request that OPM establish or increase
special salary rates under 5 U.S.C. 5305 or 5 CFR part 530, subpart C,
to address significant or likely significant difficulties in recruiting
or retaining well-qualified employees. As previously stated, we do note
that, in general, term appointments are excluded from coverage under
the Civil Service Retirement System (CSRS), but, generally, are subject
to the Federal Employees Retirement System (FERS).
This commenter also suggested OPM consider granting individuals who
serve on term appointments lasting longer than 5 years non-competitive
conversion eligibility to a permanent position in the competitive
service. OPM is not adopting this suggestion. As noted above, current
rules for term appointments do not permit this, and only the Congress,
or the President by executive order, can establish non-competitive
entry into the competitive service.
This commenter noted that its recruitment files are destroyed after
3 years and expressed concern that no record of these appointments
would exist after that time. To remedy this, the agency recommended
that the length of a potential extension under these provisions (within
the overall 10-year limitation on appointment) be added to the
employee's SF-50 as a remark, or that employees should be required to
sign a separate statement of understanding to memorialize these term
appointments. OPM recommends agencies maintain separate recruitment
files for the entire time an individual is employed under a 10-year
term appointment in order to satisfy any internal or OPM agency audit
requirements. As explained above, OPM will be issuing guidance
pertaining to the new coding for purposes of documenting these term
appointments.
The same commenter asked OPM to define the terms ``specific
statutory appropriation'' and ``specific Congressional appropriation''
as used in proposed 5 CFR 316.301(c). This comment is no longer
relevant in light of OPM's determination to limit the 10-year term
authority to certain STEM-related positions and not extend it to
positions needed to stand-up, operate, and close out time-limited
organizations which have a specific statutory appropriation; or to
time-limited projects which have been funded through specific
congressional appropriation.
Two Federal employee unions raised several objections and concerns
with this rule. A discussion of these comments follows.
One Federal employee union commented that the proposed rule is
unnecessary and counter to good public policy. The organization
believes current rules allow for 4-year extensions, and that OPM has
not made a case for these 10-year term appointments. This organization
also commented that, ``[a] 10-year term is a career position from a
practical perspective. Federal employees vest at 5 years, as a
consequence not providing full labor protections for employees for
[[Page 73627]]
up to 10 years does not make good policy.'' OPM disagrees with these
statements. We believe this authority constitutes good public policy in
that these appointments avoid an unnecessary administrative burden on
agencies from having to request an extension from OPM during the 10-
year period and thus helps to avoid any uncertainty among term
employees as to whether their employment will continue through the life
cycle of the project work for which they were hired. Additionally, this
authority meets the staffing needs of projects requiring certain STEM-
related skills known in advance to exceed 4 years and foreseeably
require a 10- year period. Finally, employees on term appointments are
not precluded from being included in bargaining units and represented
by labor unions. As a reminder, there will be robust OPM oversight
regarding the use of this 10-year term hiring authority. We have also
clarified the limits associated with making a term appointment for
certain STEM-related occupations for up to 10 years; and if agencies
discover good candidates are not interested in a 10-year term
appointment, OPM expects agencies will return to permanent competitive
hiring procedures for these occupations.
This organization also commented that this authority has the
potential of doing away with the merit system in hiring practices, and
that it does away with veterans' preference in hiring. These statements
are incorrect. Positions filled through this authority are filled in
the same manner as existing (i.e., 4 year) term appointments: by using
competitive hiring procedures (which include the application of
veterans' preference) in 5 CFR part 332, or noncompetitively in
accordance with 5 CFR 316.302(b).
This organization also commented that, ``the Burning Glass
Technologies study does not point to any instances of unmet needs based
on current lengths of term appointments. The study does assert the 10-
year term will grant more flexibility but it does not prove this
flexibility will be effective in recruiting higher quality personnel.''
OPM believes giving agencies the flexibility to appoint individuals for
durations commensurate with the work of the position to be filled will
increase the pool of talented job applicants. This flexibility is
necessary because agencies have reported to OPM that employees have
left existing term positions due to uncertainty over whether the
position will be extended. The purpose of these rules is to provide a
flexibility to agencies faced with staffing certain project-related
work, which, from the outset, is expected to last over 4 years and
foreseeably could require up to 10 years.
This organization stated this concept has no practical benefit,
noting there have not been any complaints by agencies that the 4-year
term is insufficient to recruit the talent needed. During the comment
period of this proposed rule, OPM received support from several
agencies for making a term appointment for up to 10-years for certain
STEM-related project work. OPM disagrees that there is no practical
benefit to this authority. This authority relieves agencies of the
administrative burden of having to request an extension from OPM for
work known at the outset to continue beyond 4 years. It also allays
uncertainty that employees might otherwise have about their status/
prospects for continued employment while an extension request is under
review. Finally, agencies have reported that the absence of a 10-year
term authority has led to using contractors, rather than hiring
employees, for projects that will last longer than 4 years. We
anticipate that the 10-year term appointment authority will result in
more employees being hired, rather than contractors.
Lastly, this organization commented that the proposed rule will
significantly undermine labor protections. This entity stated extending
term appointments out to 10 years will give supervisors unprecedented
authority and practically eliminate any protections for workers. OPM
neither agrees with nor understands the context of this comment.
Individuals serving on 10-year term appointments will have the same job
protections as current term employees. The job protections for
individuals serving on a 10-year term include: appeal rights after
completing a one-year trial period; and the same reduction-in-force
(RIF) protections as other term employees (i.e., being placed in the
same tenure group as other term employees for purposes of retention
standing pursuant to 5 CFR 351, subpart E). OPM did not propose any
changes to employee protections with respect to this rulemaking.
A different Federal Employee Union also expressed several
objections and concerns with this rule. The organization commented that
long-term appointments undermine competitive selection principles and
would deprive term employees of deserved benefits and job security. OPM
disagrees, noting the selection process is the same process used for
traditional term appointments. Agencies fill these positions using
competitive hiring procedures (which include the application of
veterans' preference) in accordance with 5 CFR part 332, or
noncompetitively in accordance with 5 CFR 316.302(b). Further, by its
nature, this term appointment does not displace permanent positions.
The organization stated this term appointment authority does
nothing to prevent agency abuse and affords agencies more opportunities
to avoid hiring permanent employees. OPM disagrees. As noted in the
previous response, agencies fill positions under this authority in the
same manner as traditional term appointments. In addition, positions
filled under this authority are subject to the same oversight and
accountability requirements as are other term appointments. OPM reminds
readers that the decision to fill a position on either a permanent or
time-limited basis depends upon the nature of the work to be performed
(including the length of time the agency expects the work to be
completed). Agencies should not use this authority to fill positions
for which the need for an employee's services are permanent. Lastly, as
noted above, we have constrained use of this authority to the
specifically identified STEM-related occupations. Consistent with 5 CFR
316.301(a), a term appointment is appropriate when the need for an
employee's services is not permanent. This authority cannot be used
simply to avoid hiring permanent employees. OPM will evaluate agency
usage of the authority and consider any modifications that may be
necessary.
The organization commented that the Federal Government should not
be expanding its use of these limited employment opportunities that do
not provide additional benefits and offer only limited career
advancement possibilities. The organization further noted that these
limited employment opportunities provide employees with no additional
standing when an individual in one of these appointments applies for a
full-time position. OPM disagrees with this organization's view that
OPM should not be expanding these limited employment opportunities.
This delegated authority was created to address agency hiring needs for
specific, time-limited projects expected to last longer than
traditional term appointments (i.e., 4 years), but also do not require
permanent employees.
This organization also commented that extending the current term
appointment limitation of up to 4 years to the proposed 10 years
without more benefits is thus unlikely to make Federal employment more
attractive to highly
[[Page 73628]]
qualified individuals. OPM disagrees. The commenter provides no
evidence that the availability of this 10-year term appointment for
certain time-limited projects would negatively influence the perception
of Federal employment among ``highly qualified'' individuals. These
appointments offer certain highly qualified individuals an opportunity
that permanent employment would not provide. We also note that term
employees are eligible to receive health insurance and life insurance,
participate in the Thrift Savings Plan (TSP), and earn paid leave and
General Schedule within-grade increases, and that time spent as a term
employee may be creditable towards Federal retirement under certain
circumstances. For additional information pertaining to Federal
retirement coverage and eligibility, please see <a href="https://www.opm.gov/retirement-services/">https://www.opm.gov/retirement-services/</a>.
The organization also remarked that employees hired for a term
appointment do not have higher standing when compared to outside
applicants when applying for a permanent position. OPM acknowledges
that term employment under this subpart does not lead to non-
competitive conversion to a permanent job in the competitive service.
OPM notes, however, that individuals may use the experience they
acquire under this authority to qualify for permanent positions and
that such experience may help them better compete when applying for a
permanent job.
The organization stated that: (1) this change creates a disposable
workforce for up to 10 years; (2) the practical effect of this change
is that it prolongs the period agencies can reap the benefits of the
services of term employees while retaining the ability to abruptly
terminate those appointments after an allocated time period; and (3)
that this is at odds with OPM's statement that it does not intend this
change to be a substitute for a permanent workforce or for appointing
employees to permanent positions for work of a permanent nature. OPM
disagrees. As we previously noted, this authority is for work of a
time-limited nature, i.e., situations for which the need for an
employee's services is not permanent. OPM is simply creating a category
of term appointment for which agencies already have, in appropriate
circumstances, permission to retain the appointee for up to ten years
without seeking OPM approval. OPM expects agencies to continue to fill
positions on a permanent basis when the nature of the work to be
performed requires an employee's services permanently.
The organization also commented that this change will make agencies
much less competitive with the private sector. It stated that without
affording these employees the ability to appeal the end of their
appointment or confer competitive status, these employees will continue
to lack job security under this streamlined approach to termination.
OPM disagrees. As described above, the 10-year appointment provides the
opportunity to perform work that is strictly of a non-permanent nature,
which, by definition, neither provides permanent employment nor
displaces permanent employees. Further, the 10-year appointment rule
gives agencies a flexibility to compete with the private sector that
they do not currently have. We believe the prospect of employment for
up to 10 years (versus the uncertainty of waiting for an extension
request to be approved) will enable agencies to attract interested
individuals and thus make the Federal Government more competitive for
work which is strictly of a non-permanent duration. We also note that
individuals hired under this authority will have the same appeal rights
as traditional term employees, with respect to the balance of the
stated term. In accordance with 5 CFR 316.303(b), no term employee has
the right to appeal or otherwise remain on an agency's rolls beyond the
expiration date of his or her term appointment. In other words, a term
employee would not have adverse action procedural rights if the
employee's employment terminates because the term appointment has
expired. However, if a term employee has completed the one-year trial
period, the employee must be provided adverse action procedural rights
if the agency seeks to take an adverse action, such as a removal
action, after the completion of the trial period and prior to the
expiration date of the term appointment.
This organization also commented that private sector employees in
STEM-related positions receive better compensation than employees in
STEM-related positions in the Federal Government, so increasing
recruitment incentives or special pay authority would be a better way
for the Federal government to attract and keep employees. This does not
take into account that these appointments are for projects of a limited
duration. Compensation for time-limited positions is beyond the scope
of this rulemaking. As previously discussed in this SUPPLEMENTARY
INFORMATION, OPM encourages agencies to explore the use of available
pay flexibilities to address staffing difficulties, such as recruitment
and retention incentives, where appropriate and to the extent
practicable.
This organization disagrees with the premise that extensions of up
to ten years for term appointments is an effective recruitment tool to
enable the Federal Government to compete with the private sector for
applicants with needed STEM-related skills. (This entity disagrees with
the reports cited: STEM Careers and the Changing Skill Requirements of
Work, The National Bureau of Economic Research (Revised June 2019) and
Can STEM Qualifications Hold The Key To The Future Of Cybersecurity?
(Forbes September 11, 2019)). This organization stated there has been
no showing that, in the current economic environment, there is a need
for agencies to extend the length of term appointments for such a
significant period of time or that such a change will help agencies
attract and retain STEM-related talent. As OPM previously noted, this
authority is intended to address situations for which the work to be
performed is of a time-limited nature, i.e., situations for which the
need for an employee's services is not permanent. OPM believes that in
these circumstances, allowing agencies to make term appointments for
the duration of the project work (up to 10 years) is a better
alternative (and will enhance recruitment efforts for these positions)
than requiring individuals to reapply/compete after 4 years or rely on
the employing agency to request and receive an extension from OPM or
requiring agencies to use contractor personnel.
This organization commented that a better recruitment tool for the
Federal Government to pursue would be to grant a special pay authority
to match the salaries of those in the private sector and offer other
recruitment incentives such as: telework, health benefits, and
competitive status. Agencies already have the authority to approve a
recruitment incentive without OPM approval for payments of up to 25
percent of an employee's annual rate of basic pay times the number of
years in a service agreement (not to exceed 4 years or 100 percent of
annual basic pay). OPM encourages agencies to use all recruitment
incentives available to them to the extent feasible and appropriate. We
also note that higher pay does not address the fact that the work to be
performed under this authority is not permanent; it is of a time-
limited nature.
The organization also stated that in the event of a reduction in
force (RIF), term employees would be in the first group to lose their
employment status. OPM agrees and notes the same is true
[[Page 73629]]
for term employees serving for any duration (including traditional 4-
year term appointments). In both instances, term employees will be
included in the same tenure group as other term employees for purposes
of retention standing pursuant to 5 CFR part 351, subpart E.
This organization commented that OPM does not provide any evidence
to support its position that these time-limited projects often last
longer than 4 years, or to support the additional six years. Without
evidence to support that rationale, this organization has concerns with
extending these appointments up to 10 years when the current regulation
affords agencies the opportunity to extend beyond four years only when
the extension ``is clearly justified and is consistent with applicable
statutory provisions.'' 5 CFR 316.301(b). OPM disagrees with this
assertion, noting that we cited several studies in the proposed rule
(85 FR 178) indicating 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 STEM-related fields for time-
limited projects. Moreover, contrary to the commenter's suggestion, the
10-year term appointment is not simply a longer version of the 4-year
term appointment and does not lend itself to supplanting permanent
employees.
This organization also commented that the current limitation on
term appointments which requires justification for an extension shows
the proper respect for competitive selection processes, which should be
used to fill long term positions. The organization contended that OPM
did not provide any analysis regarding how often extensions are
currently granted and/or whether the time-limited projects were
completed during these extensions. Further, it contended that agencies
are already in the position to determine whether an appointment is
needed beyond the 4-year term, subject to approval by OPM. It concluded
that this change does no more than provide agencies the authority to
abuse the term appointment system without any business justification.
OPM disagrees, noting that positions filled under this authority are
subject to the same appointment procedures as other term appointments,
including public notice and a statement in the job announcement that
the position may be extended by the agency for up to 10 years. The only
difference is that the duration of the appointment is longer based on
the nature of the project to be performed.
This organization also stated the lack of oversight to the change
encourages agencies to abuse the term appointment system. OPM disagrees
with this assertion. When using this authority agencies are required to
adhere to Merit System Principles and follow the same recruitment and
selection procedures as they do when making traditional (i.e., 4 year)
term appointments. OPM's Merit System Accountability and Compliance
(MSAC) will conduct oversight of this proposed 10-year term hiring
authority for certain STEM-related occupations when conducting its
agency accountability audits and will decide the process, factors
involved, and the timing as to when the reviews will take place for
each agency. In addition, EHRI data will allow OPM to review the number
of term appointments made to the positions covered by this rule.
The same organization commented that OPM did not provide any detail
as to how it intends to execute this oversight with regard to this
authority. It added that without clear guidance on OPM's oversight
procedures, this entity has concerns with agencies' authority to
utilize the 10-year appointment without seeking OPM approval. As OPM
noted in the previous response we will conduct the same oversight with
respect to this authority as we do with respect to traditional 4-year
term appointments.
This organization expressed concerns that a 10-year appointment
could be extended and that agencies will misapply the regulation and
continuously move employees to new time-limited projects without job
security. This entity noted that pursuant to 5 CFR 335.102(e), agencies
may promote, demote, or reassign a term employee serving on a given
project to another position within the project, which the agency has
been authorized to fill by term appointment. OPM disagrees. The
authority to promote, demote, or reassign a term employee as described
in 5 CFR 335.102(e) is limited to other positions within the project.
The authority to reassign an employee to another position within the
project, per 5 CFR part 335, does not constitute authority to extend a
term appointment. Moreover, the specific requirements for STEM-related
skills suitable for a particular project make it unlikely that an
employee appointed under this authority may be moved at will from
project to project simply to avoid providing the employee with job
security.
This organization also commented that this rule will result in
agencies losing institutional knowledge acquired, applied, and passed
on by permanent employees as agencies rely more heavily on short-term
employees. As an initial matter, agencies regularly balance the trade-
offs between term and permanent appointment. Term appointments under
this authority are only appropriate for work that is time-limited, not
permanent (i.e., the need for an employee's services is not permanent).
The decision to use this authority will thus depend on the specific
nature of the work to be performed and how the agency balances the
trade-offs between term and permanent employees. OPM encourages
agencies to engage in strategic workforce planning and knowledge
transfer/management (which may include leaving documentary materials in
various media) when practicable and necessary to ensure maintenance of
institutional knowledge.
Lastly, this organization requests that OPM strongly consider the
impact of this change on the full-time permanent employee workforce and
the loss of institutional knowledge. The organization commented that
appointment of term employees for much longer periods will likely
reduce the number of full-time employees with institutional knowledge,
as those who possess it reach the stage of retirement and there are an
insufficient number of permanent employees in line to take over. OPM
does not agree that the appointment authority will have that impact. By
its nature, this authority applies when particular expertise in STEM-
related fields is needed for a defined project, but not on an ongoing
basis once the project is completed. Should that skillset be needed
again, this authority will enable the agency to seek candidates with
up-to-date skills in the required STEM-related discipline. We also
expect agencies will use it to bring on Federal employees to perform
STEM-related project work that is currently being performed or in the
future would be performed by contractors. Nonetheless, we intend to
evaluate agency use of the authority and to make any adjustments that
would advance the efficiency of the service.
While OPM offers the specific responses noted above to the unions'
comments, we take seriously their concerns, and therefore in the final
rule have decided to limit this 10-year term authority to the STEM-
related positions for which agencies have indicated the highest demand.
Expected Impact of This Final Rule
A. Statement of Need
OPM is issuing the final rule to delegate its existing authority to
authorize terms of longer than 4 years and up to 10 years to agencies
for STEM-related occupations. OPM has been evaluating its transactional
[[Page 73630]]
activities to determine which can be delegated to agencies and
evaluated through OPM's oversight authority rather than requiring OPM
approval in advance. We have sought agency input on which transactional
activities to delegate, and multiple agencies have expressed an
interest in having delegated authority to appoint employees to terms of
longer than 4 years and up to 10 years, particularly for STEM-related
projects, which can be long-running but not permanent. After extensive
consideration and review, OPM has determined that granting this
authority for the STEM-related occupations identified in the final rule
is appropriate, and that agency use of this delegated authority can be
evaluated through OPM's normal oversight activities.
This new authority will provide agencies with the flexibility to
staff foreseeably long-term project work of a STEM-related nature when
the need for the work is not permanent but is expected to last longer
than 4 years. This new longer term appointment hiring authority will
assist agencies in recruiting and retaining individuals with certain
specialized STEM-related knowledge and experience. OPM is finalizing
this rule because it recognizes that the work performed by STEM-related
positions 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 technical or
professional 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.
OPM has narrowed the scope of the final rule from what was proposed
to the positions listed in the SUPPLEMENTARY INFORMATION. OPM has
determined that the justification for delegating its authority to
agencies for the longer term appointments is strongest with respect to
STEM-related occupations needed for projects which require longer
durations on a government basis. OPM retains authority to approve
longer-term appointments for other positions not contained within the
scope of this final rule. That authority has been little used
historically. We will be updating our guidance on use of this authority
so that agencies are aware of the ability to ask OPM to approve longer
terms for occupations not included in this rule. We will continue to
evaluate the scope of the delegation and consider any adjustments to
the occupations covered based on that evaluation.
This formulation is based on discussions with Chief Human Capital
Officers, our review of public comments, interagency comments on the
draft final rule, and OPM's view that the final rule should have
guardrails in place to ensure use of this flexibility does not impact
permanent work or employees needed to perform work a permanent nature.
B. Impact
This regulation will provide agencies a streamlined ability to
attract and retain talent, for a longer period of time, with up-to-date
knowledge and training in STEM-related fields for time-limited
projects. This regulation will also allow agencies to hire new STEM-
related 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 workforce with greater agility to
adjust to current and emerging mission needs.
OPM has reviewed historical usage of four-year term appointments
for STEM-related occupations. Over the last five fiscal years,
approximately 36,688 appointments have been made in the STEM-related
occupations covered by this final rule. Of those STEM-related
appointments, approximately 13,840 (over 37%) were extended beyond the
four-year term. These data suggest that there is need for this ten-year
term authority and support our decision to scope this delegation of
authority to agencies to appoint individuals for terms of up to 10
years to the STEM-related occupations covered in the final rule.
The impact of this rule will be an important new workforce planning
tool which will help agencies better compete for certain STEM-related
talent and retain that talent throughout the lifecycle of increasingly
longer STEM-related projects.
C. Regulatory Alternatives
The regulatory alternative to this final rule is the option of not
regulating. Current regulations at 5 CFR 316.301(b) allow agencies to
request from OPM the authority to extend a term appointment beyond the
four-year limitation, or to make initial term appointments in excess of
four years when justified. Alternatively, agencies could rely on
Federal contractors to perform this work. For certain STEM-related work
agencies expect to last longer than four years, the current rule is
cumbersome and may prove to be a disincentive to recruitment and
retention of individuals needed for this work. The Federal procurement
process can be lengthy and expensive. Affording agencies with the
option to make longer term appointments pursuant to the final rule in
lieu of contract support will allow the agency to have STEM-related
talent throughout the life cycle of a time-limited project. In
addition, this regulation may help agencies better compete for STEM-
related 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. Currently,
agencies must seek OPM approval for term appointments which last more
than 4 years. For this type of work agencies are faced with greater
challenges if they are not able to continue to employ certain
individuals with the specific STEM-related knowledge and experience
required for the time-limited work. This final rule will provide
agencies with greater flexibility when making term appointments for
certain STEM-related work and projects.
D. Costs
OPM anticipates the costs of the final rule will be less than the
costs of using other alternatives. Costs associated with the final rule
are minimal and include: the costs associated with internal agency
approval processes to approve an extension pursuant to the final rule
up to ten years duration, and the usual learning curve of implementing
a regulatory change. To help minimize these costs, OPM intends to issue
supplemental explanatory guidance as well as provide technical
assistance upon request to any agency which may require such
assistance. Because agency skill levels and internal processes vary,
OPM cannot monetize the costs of providing this flexibility to
agencies.
The costs associated with the regulatory alternative, i.e., relying
on existing rules and/or Federal contractors, would be greater than the
costs associated with implementing the final rule. Under current rules,
agencies
[[Page 73631]]
would be required to request OPM approval to make initial term
appointments in excess of four years for STEM-related work. This
process requires additional staff resources (for preparation, review,
and approval) from both the requesting agency and OPM than would
otherwise be the case with the final rule (the final rule would
eliminate costs associated with this step). If an agency sought to make
a 4- year appointment and request an extension from OPM as needed, both
agencies would incur similar costs (for preparation, review, and
approval) to those associated with a request pursuant to 5 CFR
316.301(b). The final rule would eliminate these costs as well. OPM
cannot monetize these costs as they may vary across agencies.
The costs associated with relying on contractors to perform this
STEM-related work present an additional obstacle for agencies. The use
of contractors requires an agency to invoke non-human resources staff
to prepare, issue, and navigate the Federal procurement process. This
will add additional staff time and expenses to the process of obtaining
STEM-related talent that agencies would otherwise would not incur if
using the final rule. Using the contracting/procurement process
represents an additional layer that adds a hidden cost in the form of
time delays which will negatively impact agencies' ability to attract
this in-demand talent and delay agencies' ability to meet current and
emerging mission needs. OPM cannot quantify these hidden costs because
procurement expertise and processes vary across agencies.
E. Benefits
The benefits of the final rule are many and will be realized by
both the agencies and the employees recruited under these provisions.
The final rule streamlines the process through which agencies can
obtain needed STEM-related employees for work of a non-permanent
nature. It does this by eliminating one and/or two steps agencies would
otherwise be required to follow: requesting and obtaining OPM approval
to make initial term appointments in excess of four years, and the
requirement for agencies to obtain OPM approval to extend a term
appointment beyond the 4-year time limit. This flexibility reduces the
time to fill time-limited STEM-related positions as well as the
administrative costs incurred by agencies and OPM associated with these
approval processes (i.e., preparation, review, and approval). This will
make agencies more competitive in their quest for STEM-related talent
by providing them the flexibility and agility needed to better attract
and retain talent, for a significant period of time, with in-demand,
up-to-date knowledge and training in the STEM-related fields. The final
rule will provide agencies with greater flexibility when making longer
term appointments for positions involving STEM-related work and/or
projects. The final rule will save agencies from the time and expense
associated with utilizing contractors to perform STEM-related work
covered by these provisions. This will also support agencies with their
mission/service-delivery by minimizing turnover or staff transition on
time-limited STEM-related projects which supports continuity and on-
time delivery of mission requirements.
Individuals hired under these provisions would benefit as well. As
federal employees these individuals would have more job security,
employee protections, opportunities for advancement via promotion,
opportunities for supervisory work, and access to benefits (e.g.,
health insurance, life insurance and participation in the Thrift
Savings Plan (TSP)) than would be the case if hired as contractors to
work on special projects. By providing uninterrupted employment for up
to 10 years, this flexibility will lessen the likelihood that a time-
limited employee appointed under the current rules will leave an
existing term position due to uncertainty over whether the position
will be extended. This outcome promotes retention of these employees
which leads to continuity during project work and thus benefits both
agencies and employees alike.
F. List of Studies Considered
Data from Employment analytics firm Burning Glass Technologies
(BGT).
``STEM Careers and the Changing Skill Requirements of Work.''
Deming, David J.; Noray, Kadeem L, The National Bureau of Economic
Research, Revised June 2019.
``Can STEM Qualifications Hold The Key To The Future Of
Cybersecurity?'' Feiman, Joseph, (Forbes September 11, 2019).
Executive Order 12866
Executive Order 12866 Executive Order 12866 directs 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). In
accordance with the provisions of Executive Order 12866, this rule was
reviewed by the Office of Management and Budget as a significant, but
not economically significant rule.
Regulatory Flexibility Act
The Director of the Office of Personnel Management certifies 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.
Federalism
We have examined this rule in accordance with Executive Order
13132, Federalism, and have determined that this rule will not have any
negative impact on the rights, roles, and responsibilities of State,
local, or tribal governments.
Civil Justice Reform
This regulation meets the applicable standard set forth in
Executive Order 12988.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, or
tribal governments, in the aggregate, or by the private sector, of more
than $100 million or more in any year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Congressional Review Act
Subtitle E of the Small Business Regulatory Enforcement Fairness
Act of 1996 (known as the Congressional Review Act or CRA) (5 U.S.C.
801 et seq.) requires rules to be submitted to Congress before taking
effect. OPM will submit to Congress and the Comptroller General of the
United States a report regarding the issuance of this rule before its
effective date, as required by 5 U.S.C. 801. The Office of Information
and Regulatory Affairs in the Office of Management and Budget has
determined that this rule is not a major rule as defined by the CRA, 5
U.S.C. 804.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521)
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.
[[Page 73632]]
Office of Personnel Management.
Stephen Hickman,
Federal Register Liaison.
Accordingly, OPM is amending 5 CFR part 316 as follows:
PART 316--TEMPORARY AND TERM EMPLOYMENT
0
1. The authority citation for part 316 is revised 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)(1) An agency may make a term appointment for a period of more
than 1 year but not more than 10 years to a covered position defined in
(2) when the need for an employee's services is not permanent. 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.
(2) An agency may make a term appointment for more than 1 year but
not more than 10 years to the following positions (as described in
OPM's Handbook of Occupational Groups and Series):
(i) Social Science Series, 0101;
(ii) Economist Series, 0110;
(iii) Psychology Series, 0180;
(iv) Natural Resources Management and Biological Sciences Group
(i.e., 0400 group);
(v) Medical, Hospital, Dental, and Public Health Group (i.e., 0600
group);
(vi) Engineering and Architecture Group (i.e., 0800 group);
(vii) Physical Science Group (i.e.,1300 group);
(viii) Mathematical Sciences Group (i.e., 1500 group); and
(ix) Information Technology Group (i.e., 2200 group).
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 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. 2022-26221 Filed 11-30-22; 8:45 am]
BILLING CODE 6325-39-P
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