[Federal Register: August 15, 2005 (Volume 70, Number 156)]
[Rules and Regulations]
[Page 47711-47716]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15au05-1]
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Rules and Regulations
Federal Register
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[[Page 47711]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR PART 370
RIN 3206-AJ91
Information Technology Exchange Program
AGENCY: Office of Personnel Management.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Office of Personnel Management (OPM) is issuing final
regulations to implement provisions contained in the E-Government Act
of 2002. This law authorizes the temporary detail of employees in the
field of information technology (IT) management from the Federal
Government to private sector organizations. It also authorizes Federal
agencies to accept private sector employees detailed under this
program. This program is envisioned to promote the interchange of
Federal and private sector workers to enhance skills and competencies.
DATES: Effective September 14, 2005.
FOR FURTHER INFORMATION CONTACT: Hakeem Basheerud-Deen at (202) 606-
1434 or by e-mail at hakeem.basheerud-deen@opm.gov. Hakeem Basheerud-
Deen may also be contacted by TTY at (202) 418-3134, or by fax at (202)
606-2329.
SUPPLEMENTARY INFORMATION: On January 15, 2004, OPM issued proposed
regulations at 69 FR 2308-2310 to implement the Federal Information
Technology Exchange Program (hereafter referred to as the Program), as
authorized by the E-Government Act of 2002 (Act), Public Law 107-347,
and requested comments by March 15, 2004. That part of the Act
authorizes a Federal agency to detail an exceptional information
technology employee to a private sector organization for purposes of
training and development. It also gives Federal agencies the authority
to accept comparable information technology employees detailed from the
private sector. The Program is codified in a new chapter 37 in title 5,
United States Code (U.S.C.), and this regulation adds a corresponding
part 370, Information Technology Exchange Program, to title 5 of the
Code of Federal Regulations (CFR) in accordance with 5 U.S.C. 3707.
Comments
OPM received comments from 8 Federal agencies, 1 professional
organization, 1 labor organization, and 22 individuals. Those comments
are addressed below according to the corresponding sections of the
regulations.
Purpose
One agency commented the Program would be more beneficial if it
required a reciprocal exchange of employees, i.e., a temporary exchange
of a Federal employee with a private sector employee. OPM did not adopt
this suggestion because requiring reciprocity would reduce agency
flexibility in designing its Program. Under the final regulations,
Federal agencies may detail their employees to the private sector with
or without reciprocity.
One agency suggested the phrase, ``to meet the personal interests
of employees'' be deleted from the last sentence of paragraph (b) of
section 370.101 because any approved details should meet the needs of
the agency as well as the employee. We agree and have modified the
regulations to state, ``Approved details must meet the strategic
program goals of the agency. The benefits to the Federal agency and the
private sector organization are the primary considerations in
initiating details; not the desires or personal needs of an individual
employee'' in section 370.101(b).
One agency recommended the regulations provide more detail about
the specific role of the Chief Information Officers (CIO) Council in
administering the Program. We note the Act provides for assistance from
the CIO Council, but we believe it is inappropriate to prescribe that
role in regulations. Doing so would limit the flexibility of the CIO
Council in providing assistance.
One labor organization suggested the regulations require agencies
to develop procedures for identifying which IT positions are designated
for the Program through analyses or studies to determine the needs in
those positions. We are not adopting this suggestion because the Act
specifically refers to employees and not positions. The Program is
intended to enhance the skills and competencies of an agency's IT
employees. The regulations require agencies to establish estimated
numbers of candidates needed to address IT workforce needs within the
agency in accordance with section 370.109(b), and employee selection
procedures in accordance with section 370.109(c).
A labor organization noted the proposed regulations fail to discuss
the impact of the Program on Government employees who are not detailed.
The regulations do not discuss this because the Program's impact on
employees not detailed is beyond the scope of these regulations but
falls under the agency's overall responsibility to manage its
workforce.
Three agencies, one labor organization, and one individual
commented the regulations should address performance measurement,
feedback, and performance appraisals for detailees. We do not agree
this is necessary because these areas are covered already under 5 CFR
part 430, section 430.205(b), Agency Performance Appraisal Programs,
which states, in part, ``an agency program shall establish criteria and
procedures to address employee performance for employees who are on
detail * * *.''
Two individuals suggested the Program be used for inter-agency
exchanges in addition to private sector exchanges. OPM did not adopt
this suggestion because inter-agency exchanges are not addressed in the
Act.
Definitions
One agency stated OPM did not define ``private sector
organization'' and asked if private sector organizations include
academic institutions, non-profit organizations, and organizations
covered by the Intergovernmental Personnel Act. OPM agrees that
clarification is needed. We have added a definition of ``private sector
organization'' as a profit-making business entity registered in the
Central Contractor Registration (CCR) Database (http://www.ccr.gov).
The CCR is an accepted standard that ensures private sector
organizations meet established
[[Page 47712]]
requirements to conduct business with the Government. Details to non-
profit and academic organizations are already covered under the
Intergovernmental Personnel Act Program and are therefore not
considered private sector organizations for the purposes of this
program.
Two agencies, one labor organization, and one individual
recommended the requirement in section 370.103 that a detailee be an
``exceptional employee'' is subjective and should be clearly defined.
We agree and have added a definition of ``exceptional employee'' to
mean ``an employee who is rated at the highest levels of the applicable
performance appraisal system or, in the case of an employee under an
appraisal system that does not have a summary rating level above `fully
successful' or equivalent, is rated at the highest summary level used
by the performance appraisal system and demonstrates sustained quality
performance significantly above that expected in the type of position
involved, as determined under performance related criteria established
by the agency.''
In order to ensure consistency across Government, OPM has clarified
the definition of information technology management to mean ``the
planning, organizing, staffing, directing, integrating, or controlling
of information technology as defined by Office of Management and Budget
Circular A-130.
Eligibility
Two agencies and one individual requested employees in grades below
GS-11 be allowed to participate. We are not implementing this request
because the Act established the GS-11 level (or equivalent) as the
minimum eligible grade.
One agency suggested the eligibility criteria include a requirement
that an employee work in his or her position for a minimum of 1 year
prior to participation in the Program to ensure the employee is well
grounded in the organization before being allowed to represent the
organization on a detail. We do not agree with this suggestion for
Governmentwide implementation because such a requirement would overly
restrict the ability of agencies to select employees for detail.
However, individual agencies may impose such a requirement in their
agency plan.
Two agencies commented section 370.103(a)(3) may imply a detail is
a reward or career-enhancing detail and, upon returning to the agency,
may result in advancement or promotion. These agencies suggested we add
language to indicate an employee's eligibility for the Program is not
limited to the expectation of assuming increased responsibilities of IT
in the future or that advancement or promotion will be a result of the
detail. OPM disagrees the proposed language implies a detail is a
reward or necessarily career-enhancing. In addition, we are not
adopting this suggestion because the Act specifically states that
individuals eligible to be detailed under this part are expected to
assume increased responsibilities in IT management.
One agency recommended the final regulations be amended to clarify
whether non-career Senior Executive Service (SES) members are eligible
to serve on a detail. We agree clarification is needed concerning SES
members and have amended the language in section 370.103 to state
``only career members of the SES are eligible to be detailed under this
part.'' We have excluded non-career SES employees because the Act
stipulates eligible employees must be serving under a career or career-
conditional appointment.
An individual questioned the appropriateness of allowing employees
who are in specifically designated development programs, such as the
Presidential Management Fellows Program, the Federal Career Intern
Program, or the Student Career Experience Program, to participate. We
share this concern and have excluded employees in specifically
designated development programs by limiting the eligibility of excepted
service employees in section 370.103(b) to those individuals on
permanent appointments. Our rationale is we believe it is appropriate
for these individuals to gain the full value of their participation in
these developmental programs, which oftentimes is their initial Federal
appointment, prior to participation in the IT Exchange Program.
A labor organization commented the regulations do not require
private sector employers to send top performers into the Program,
thereby creating a disparity relative to Federal employers, who are
required to do so. OPM disagrees, noting section 370.103(a)(2) states
to be eligible for a detail under this part, an individual must be
considered an exceptional employee by the individual's current
employer. This applies to both Federal and private sector employers.
One agency suggested the regulations permit participation by
private sector candidates from companies not based in the U.S. OPM did
not fully adopt this suggestion; however, we clarified this section by
adding paragraph (c) to section 370.103 which states, ``To be eligible
to participate in the Information Technology Exchange Program, a
private sector organization must be registered in the Central
Contractor Registration Database located at http://www.ccr.gov, or fall
within one of the exceptions specified in section 4.1102 of the Federal
Acquisition Regulation.'' This Governmentwide requirement pertains to
both U.S. and foreign private sector organizations seeking to conduct
business with the Government. As previously noted, the CCR is an
accepted standard that ensures private sector organizations meet
established requirements to conduct business with the Government. In
addition, as a necessary measure against potential security risks we
have amended section 370.103 to require private sector individuals
detailed under this part to meet citizenship requirements for Federal
employment. Even though these individuals will be on detail, they will
be performing work similar to, and along side, Federal employees
(oftentimes in secure IT environments) who are subject to these
provisions.
Written Agreements
One individual commented employees detailed under this Program may
have difficulty returning to their previous positions and Federal
agencies may have difficulty reincorporating these persons back into
their respective agencies. OPM believes the regulations, as proposed,
adequately address any such concerns. The regulations address these
situations in two separate sections: Section 370.105, Written
agreements, generally requires a Federal employee to return to his or
her employing agency upon completion of the detail for a period of time
equal to the length of that detail; and section 370.109, Agency plans,
requires agency plans to include return rights and continuing service
requirements for Federal employees returning from details.
One agency and one labor organization recommended the written
agreement describe the duties of the detailed employee and/or the
developmental objectives of the assignment (e.g., projects, programs,
systems). We agree, and have modified section 370.105 to require a
description of the duties to be performed, a specification of the
duration of the detail and the terms under which extensions to the
detail may be granted, and individual development plans describing the
core IT and other competencies the detailee is expected to acquire.
However, the agency has the authority and flexibility to require
additional information in the written
[[Page 47713]]
agreements and/or tailor agreements to the detail. In addition, we have
added language to section 370.102, Definitions, that defines core IT
competencies as those competencies identified by the Federal CIO
Council. These competencies serve as a baseline for Federal agencies in
meeting the Clinger-Cohen Act's requirement to determine the training
and development needs of the Federal IT workforce.
One individual suggested the service agreement be pro-rated based
on the employee's grade (i.e., employees in higher grades have longer
service commitments than employees in lower grades). OPM is not
adopting this suggestion because the statutory requirement, as stated
in 5 U.S.C. 3702, specifies the service requirements which cannot be
changed by regulation.
Terms and Conditions
A labor organization expressed concerns about the protection of
employees' rights when detailed to the private sector. This
organization also stated there is an accountability gap between the
agency and private sector organization if there is no requirement for
an agreement between the agency and private sector organization. OPM
notes section 370.106 states Federal employees will lose none of their
rights while on detail. However, we agree there must be accountability
between all parties, and have added language to section 370.105 Written
Agreements which states, ``The written agreement must be a three-party
agreement between the Federal agency (agency head or designee), the
individual (private or Federal), and the private sector organization.''
Three agencies, one professional organization, and several
individuals recommended OPM clarify how, and by whom, costs associated
with this Program will be paid. OPM notes section 370.105(e) states the
responsibilities and obligations, including as to costs, of all parties
to a detail must be addressed in the written agreement. OPM will
provide a sample written agreement and a set of frequently asked
questions and answers guidance that will be posted on our Web site at
http://www.opm.gov.
One agency asked if procedures for getting into the Program are
negotiable with the union and, if so, how that affects a private sector
organization that has no union.
Additionally, they suggested OPM address bargaining unit employees
in the final regulations. Management selection of employees for this
Program is not negotiable. However, selection procedures, to the extent
consistent with applicable laws and Governmentwide rules and
regulations, may be negotiable. Bargaining unit employees detailed
under this Program are not part of the bargaining unit while on detail.
OPM does not agree there is a need to address the impact of this
Program on bargaining unit employees in the final regulations because
the rules for bargaining unit employees detailed under this Program are
not different from other details.
Two agencies recommended OPM clarify whether Federal employees who
serve with private sector organizations do so without loss of Federal
equal employment opportunity (EEO) rights and private sector
individuals retain their EEO protections while on detail to the Federal
Government. OPM believes it would be inappropriate to address these
issues in regulation because EEO rights are conferred by the relevant
EEO statutes and regulations.
Two agencies requested the final regulations include general
guidelines outlining reasons for which these details may be terminated
by the Federal agency, the private sector organization, or the
employee. The Act includes such guidelines and we have added section
370.106(e) which states, ``Details may be terminated by the agency
(agency head or designee) or private sector organization for any reason
at any time.''
One agency suggested OPM include a clause precluding a private
sector company from hiring a detailed Federal employee for a period of
1 year following separation from Federal employment. The agency stated
such a clause would block private sector companies that may be able to
offer higher salaries and other recruitment benefits from hiring
Federal employees without the costs of advertising, interviewing, and
obtaining security clearances. We are not adopting this suggestion
because the Act does not give OPM the authority to preclude private
sector organizations from hiring Federal employees. However, post-
employment restrictions for certain Federal employees as well as
restrictions for Federal employees seeking other employment exist in
current statutes. For instance, post-Federal employment restrictions
are in 18 U.S.C. 207; the prohibition on negotiating with certain
persons for post-Federal employment while still a Federal employee is
in 18 U.S.C. 208. In addition, section 370.105(d) requires Federal
employees to return to their employing agencies upon completion of the
detail.
One labor organization stated its opposition to the absence of
regulatory language governing the behavior of private sector employers
participating in this Program. OPM disagrees further clarification is
necessary. Section 370.105 Written Agreements requires a three-part
agreement which includes guidelines for private sector employer
behavior and expectations as it relates to the detail. Agencies may add
to the guidelines addressed in this section as appropriate.
Several agencies, as well as individuals, questioned the
applicability of the legal and ethics provisions in the regulations to
Federal and private sector employees. OPM notes the regulations state
Federal employees remain subject to all legal and ethics provisions
identified in the Act, and private sector employees detailed to Federal
agencies under this part are considered Federal employees for the
purposes of the legal and ethics provisions cited. Additionally, OPM
will address these issues further in Questions and Answers guidance
that will be posted on our Web site at http://www.opm.gov.
Small Business Concerns
One agency suggested we clarify whether reporting requirements in
section 370.107 are based on the calendar or fiscal year. We agree that
clarification is needed under the small business concern reporting
requirement. Although the reporting requirement was referenced in the
proposed regulation, for the convenience of the reader we have added
section 370.107(c) which states, ``For the purposes of this section,
`year' refers to the 12-month period beginning on the date of the
enactment of the Act, December 17, 2002, and each succeeding 12-month
period in which any assignments are made.'' Additionally, we have
clarified agencies' semiannual reporting requirements to OPM under
section 370.108 Reporting Requirements.
Agency Plans
One agency commented OPM requires agencies to have plans in place
before details may be approved although the Act does not require this.
This agency stated there may be situations where agencies would want to
begin details before formal plans are developed. OPM does not share
this view, noting agency plans and written implementation standards are
critical to the success and evaluation of this Program. Agency plans
must be in place before an agency may engage in a detail under this
part. OPM has exercised similar authority when implementing other
programs such as the Student Loan Repayment and Academic Degree
Programs.
[[Page 47714]]
A professional organization recommended OPM add a provision to
encourage agencies to act expeditiously in drafting and approving a
plan. This organization suggested OPM consider requiring agencies to
complete their agency plans within a specific time frame, such as 120
days or 180 days. OPM is not adopting this recommendation because use
of the Program is discretionary and plans are only needed if the agency
chooses to establish a Program under the Act.
One agency suggested section 370.109(b) be re-phrased to read,
``The number of IT Exchange Candidates proposed for the agency,''
stating the phrase used in the proposed regulations could be construed
to mean a number equal to an agency's entire IT staff. Another Federal
agency suggested the requirement be eliminated from agencies' plans
because IT requirements are constantly changing and plans of this
nature are not frequently revised and could become outdated. OPM does
not share this interpretation or view; agencies should craft and modify
their plans based upon a realistic analysis of their IT workforce
needs. However, to clarify the intent behind this section we have
changed the language to read, ``Estimated number of candidates needed,
both private sector and Federal employees, to address IT workforce
needs within the agency.''
A labor organization commented on the absence of strategic goals
for the Program stating without specific training goals, it will be
difficult to determine if the Program has served its purpose. OPM
disagrees additional language is needed in the regulation, and notes
section 370.101(b) states the Governmentwide strategic goal for the
Program. In addition, agency plans will address strategic goals for the
Program to support the Governmentwide goal as applicable to individual
agencies.
One agency requested we require agencies to compete detail
opportunities using merit promotion procedures because details are
considered to be career-enhancing. The agency also recommended we
explain the types of recruitment methods to be used for attracting
people to the Program. While the Act does not require details to be
competed, nor is there a guarantee detailees would gain a competitive
advantage in future merit promotion, we have modified section
370.109(c) to include provisions which require announcement,
nomination, and review of nominations by appropriate selecting
officials. Agencies will not be required to publish a formal vacancy
announcement; something less formal is allowable. Agencies must
publicize these opportunities; but how they do so is left up to the
agencies. The modified language is flexible enough to allow agencies to
establish their own criteria for announcing details.
Executive Order 12866, Regulatory Review
This final rule has been reviewed by the Office of Management and
Budget in accordance with Executive Order 12866.
Regulatory Flexibility Act
I certify these regulations would not have a significant economic
impact on a substantial number of small entities (including small
businesses, small organizational units, and small governmental
jurisdictions) because they would only apply to Federal agencies and
employees.
List of Subjects in 5 CFR Part 370
Claims, Government employees, Reporting and recordkeeping
requirements.
U.S. Office of Personnel Management.
Linda M. Springer,
Director.
0
Accordingly, OPM is adding part 370 to title 5 of the Code of Federal
Regulations, as follows:
PART 370--INFORMATION TECHNOLOGY EXCHANGE PROGRAM
Sec.
370.101 Purpose.
370.102 Definitions.
370.103 Eligibility.
370.104 Length of details.
370.105 Written agreements.
370.106 Terms and conditions.
370.107 Details to small business concerns.
370.108 Reporting requirements.
370.109 Agency plans.
Authority: Pub. L. 107-347, 116 Stat. 2923-2931 (5 U.S.C. 3707).
Sec. 370.101 Purpose.
(a) The purpose of this part is to implement sections 209(b)(6) and
(c) of the E-Government Act of 2002 (Pub. L. 107-347), which authorize
the Office of Personnel Management to establish an Information
Technology Exchange Program. This statute authorizes the temporary
detail of information technology employees between the Federal
Government and private sector organizations. The statute also gives
Federal agencies the authority to accept private sector information
technology employees detailed under the Information Technology Exchange
Program.
(b) Agency heads, or their designees, may approve details as a
mechanism for improving the Federal workforce's competency in using
information technology to deliver Government information and services.
Details under this part allow Federal employees to serve with private
sector organizations for a limited time period without loss of employee
rights and benefits. Agencies may not make details under this part to
circumvent personnel ceilings, or as a substitute for other more
appropriate personnel decisions or actions. Approved details must meet
the strategic program goals of the agency. The benefits to the Federal
agency and the private sector organization are the primary
considerations in initiating details; not the desires or personal needs
of an individual employee.
Sec. 370.102 Definitions.
In this part: Agency means an Executive agency as defined in 5
U.S.C. 105, with the exception of the Government Accountability Office.
Core Competencies are those IT competencies identified by the
Federal Chief Information Officer (CIO) Council as a baseline for use
by Federal agencies in complying with the Clinger-Cohen Act, Public Law
104-106, to determine the training and development needs of the Federal
IT workforce.
Detail means: (1) The assignment or loan of an employee of an
agency to a private sector organization without a change of position
from the agency that employs the individual (5 U.S.C. 3701(2)(A)), or
(2) The assignment or loan of a private sector organization
employee to an agency without a change of position from the private
sector organization that employs the individual (5 U.S.C. 3701(2)(B)).
Exceptional employee means an employee who is rated at the highest
levels of the applicable performance appraisal system or, in the case
of an employee under an appraisal system that does not have a summary
rating level above ``fully successful'' or equivalent, is rated at the
highest summary level used by the performance appraisal system and
demonstrates sustained quality performance significantly above that
expected in the type of position involved, as determined under
performance-related criteria established by the agency.
Information technology (IT) management means the planning,
organizing, staffing, directing, integrating, or controlling of
information technology as defined by Office of Management and Budget
Circular A-130 which states, the term ``information technology'' means
any equipment or interconnected system or subsystem of equipment, that
is used in the automatic acquisition, storage, manipulation,
[[Page 47715]]
management, movement, control, display, switching, interchange,
transmission, or reception of data or information by an executive
agency. For purposes of the preceding sentence, equipment is used by an
executive agency if the equipment is used by the executive agency
directly or is used by a contractor under a contract with the executive
agency which requires the use of such equipment, or requires the use,
to a significant extent, of such equipment in the performance of a
service or the furnishing of a product. The term ``information
technology'' includes computers, ancillary equipment, software,
firmware and similar procedures, services (including support services),
and related resources. The term ``information technology'' does not
include any equipment that is acquired by a Federal contractor
incidental to a Federal contract. The term ``information technology''
does not include national security systems as defined in the Clinger-
Cohen Act of 1996 (40 U.S.C. 1452).
OPM means the Office of Personnel Management.
Private sector organization means a profit-making business entity
that is registered in the Central Contractor Registration Database
(http://www.ccr.gov) as required for the conduct of business with the
Government.
Small business concern means a business concern that satisfies the
definitions and standards specified by the Administrator of the Small
Business Administration (SBA), under section 3(a)(2) of the Small
Business Act, codified at 13 CFR 121. Federal agencies can find more
information through the ``Frequently Asked Questions'' page on the
SBA's Web site at http://www.sba.gov, which addresses small business
size standards.
Sec. 370.103 Eligibility.
(a) To be eligible for a detail under this part, an individual
must:
(1) Work in the field of information technology management;
(2) Be considered an exceptional employee by the individual's
current employer; and
(3) Be expected by the individual's current employer to assume
increased information technology management responsibilities in the
future.
(b) To be eligible for a detail under this part, a Federal
employee, in addition to meeting the requirements of paragraph (a) of
this section, must be serving in a position at the GS-11 level or above
(or equivalent), under a career or career-conditional appointment or an
appointment of equivalent tenure in the excepted service. For purposes
of this part, positions of equivalent tenure in the excepted service
are limited to permanent appointments. In addition, only career members
of the Senior Executive Service are eligible to be detailed under this
part.
(c) To be eligible to participate in the Information Technology
Exchange Program, a private sector organization must be registered in
the Central Contractor Registration Database located at http://www.ccr.gov
, except as permitted by the Federal Acquisition Regulation
(48 CFR 4.1102).
(d) To be eligible for a detail to a Federal agency under this
part, a private sector employee, in addition to meeting the
requirements of paragraph (a) of this section, must meet citizenship
requirements for Federal employment in accordance with 5 CFR 7.3 and
338.101, as well as any other statutory limitation.
Sec. 370.104 Length of details.
(a) Details may be for a period of between 3 months and 1 year, and
may be extended in 3-month increments for a total of not more than 1
additional year, in accordance with 5 U.S.C. 3702(d).
(b) Agencies may not approve or extend details after December 17,
2007. An individual serving on a detail prior to this date may continue
to do so as long as the detail began or was extended on or before
December 17, 2007.
(c) For the life of the ITEP, a Federal agency may not send on
assignment an employee who has served on a detail under this part for
more than 6 years during his or her Federal career. OPM may waive this
provision upon request of the agency head, or his or her designee.
Sec. 370.105 Written agreements.
Before the detail begins, the agency and private sector
organization must enter into a written agreement with the individual(s)
detailed. The written agreement must be a three-party agreement between
the Federal agency (agency head or designee), the individual (private
sector or Federal), and the private sector organization. The written
agreement must include, but is not limited to, the following elements:
(a) The duties to be performed, duration, and terms under which
extensions to the detail may be granted;
(b) An individual development plan describing the core IT
competencies and technical skills that the detailee will be expected to
enhance or acquire;
(c) Whether the individual will be supervised by a Federal or
private sector employee; and a description of the supervision;
(d) The requirement for Federal employees to return to their
employing agency upon completion of the detail for a period equal to
the length of the detail including any extensions; and
(e) The obligations and responsibilities of all parties as
described in 5 U.S.C. 3702 through 3704.
Sec. 370.106 Terms and conditions.
(a) A Federal employee detailed under this part:
(1) Remains a Federal employee without loss of employee rights and
benefits attached to that status. These include, but are not limited
to:
(i) Consideration for promotion;
(ii) Leave accrual;
(iii) Continuation of retirement benefits and health, life, and
long-term care insurance benefits; and
(iv) Pay increases the employee otherwise would have received if he
or she had not been detailed;
(2) Remains covered for purposes of the Federal Tort Claims Act,
and for purposes of injury compensation as described in 5 U.S.C.
chapter 81; and
(3) Is subject to any action that may impact the employee's
position while he or she is detailed.
(b) An individual detailed from a private sector organization under
this part:
(1) Is deemed to be an employee of the Federal agency for purposes
of:
(i) Title 5, United States Code, chapter 73 (Suitability, Security,
and Conduct);
(ii) Title 18, United States Code, section 201 (Bribery of Public
Officials and Witnesses), section 203 (Compensation to Members of
Congress, Officers, and Others in Matters Affecting the Government),
section 205 (Activities of Officers and Employees in Claims Against and
Other Matters Affecting the Government), section 207 (Restrictions on
Former Officers, Employees, and Elected Officials of the Executive and
Legislative Branches), section 208 (Acts Affecting a Personal Financial
Interest), section 209 (Salary of Government Officials and Employees
Payable Only by the United States), section 603 (Making Political
Contributions), section 606 (Intimidation to Secure Political
Contributions), section 607 (Place of Solicitation), section 643
(Accounting Generally for Public Money), section 654 (Officer or
Employee of United States Converting Property of Another), section 1905
(Disclosure of Confidential Information Generally), and section 1913
(Lobbying with Appropriated Moneys);
(iii) Title 31, United States Code, section 1343 (Buying and
Leasing Passenger Motor Vehicles and Aircraft),
[[Page 47716]]
section 1344 (Passenger Carrier Use), and section 1349(b), (Adverse
Personnel Actions);
(iv) The Federal Tort Claims Act and any other Federal tort
liability statute;
(v) The Ethics in Government Act of 1978;
(vi) Internal Revenue Code of 1986, section 1043 (Sale of Property
to Comply with Conflict-of-Interest Requirements); and
(vii) Title 41, United States Code, section 423 (Prohibition on
Former Official's Acceptance of Compensation From Contractor).
(2) Does not have any right or expectation for Federal employment
solely on the basis of his or her detail;
(3) May not have access to any trade secrets or to any other
nonpublic information which is of commercial value to the private
sector organization from which he or she is detailed;
(4) Is subject to such regulations as the President may prescribe;
and
(5) Is covered by 5 U.S.C. chapter 81, Compensation for Work
Injuries, as provided in 5 U.S.C. 3704(c).
(c) Individuals detailed under this part may be supervised either
by Federal or private sector managers. For example, a Federal employee
on detail to a private sector organization may be supervised by a
private sector manager. Likewise, a private sector employee on detail
to an agency may be supervised by a Federal manager.
(d) As provided in 5 U.S.C. 3704(d), a private sector organization
may not charge the Federal Government, as direct or indirect costs
under a Federal contract, for the costs of pay or benefits paid by that
private sector organization to an employee detailed to an agency under
this part.
(e) Details may be terminated by the agency (agency head or
designee) or private sector organization concerned for any reason at
any time.
Sec. 370.107 Details to small business concerns.
(a) The head of each agency must take such actions as may be
necessary to ensure that, of the details made to private sector
organizations in each calendar year, at least 20 percent are to small
business concerns, in accordance with 5 U.S.C. 3703(e)(1).
(b) Agencies must round up to the nearest whole number when
calculating the percentage of details to small business concerns needed
to meet the requirements of this section. For example, if an agency
detailed 11 individuals to private sector organizations during a given
year, to meet the 20 percent requirement, that agency must have made at
least 3 (rounded up from 2.2) of these details to small business
concerns.
(c) For purposes of this section, ``year'' refers to the 12-month
period beginning on date of the enactment of the Act, December 17,
2002, and each succeeding 12-month period in which any assignments are
made. Assignments ``made'' in a year are those commencing in such year,
in accordance with 5 U.S.C. 3703(e)(2).
(d) Agencies that do not meet the requirements of this section are
subject to the reporting requirements in 5 U.S.C. 3703(e)(3).
(e) An agency that makes fewer than five details to private sector
organizations in any year is not subject to this section.
Sec. 370.108 Reporting requirements.
(a) Agencies using this part must prepare and submit to OPM
semiannual reports in accordance with 5 U.S.C. 3706 which must include:
(1) The total number of individuals detailed to, and the total
number of individuals detailed from, the agency during the report
period;
(2) A brief description of each detail reported under paragraph
(a)(1) of this section including:
(i) The name of the detailed individual, and the private sector
organization and the agency (including the specific bureau or other
agency component) to or from which such individual was detailed;
(ii) The respective positions to and from which the individual was
detailed, including the duties and responsibilities and the pay grade
or level associated with each; and
(iii) The duration and objectives of the individual's detail; and
(3) Such other information as OPM considers appropriate.
(b) Reports are due to OPM no later than April 7 and October 7 of
each year for the immediately preceding 6-month periods ending March 31
and September 30, respectively.
(c) Agencies that do not meet the requirements of Sec. 370.107
must prepare and submit annual reports to Congress in accordance with 5
U.S.C. 3703(e)(3), as appropriate.
Sec. 370.109 Agency plans.
Before detailing agency employees or receiving private sector
employees under this part, an agency must establish an Information
Technology Exchange Program Plan. The plan must include, but is not
limited to, the following elements:
(a) Designation of the agency officials with authority to review
and approve details;
(b) Estimated number of candidates needed, both private sector and
Federal employees, to address IT workforce needs within the agency;
(c) Criteria for the selection of agency employees for a detail
under this part. At a minimum, each agency must:
(1) Announce the detail, including eligibility requirements, to all
eligible employees;
(2) Provide for employee nomination by their organization or self-
nomination, to include endorsement by their respective supervisor;
(3) Forward nominations to designated agency reviewing and
approving official for final selection.
(4) Consider:
(i) The extent to which the employee's current competencies and
skills are being utilized in the agency;
(ii) The employee's capability to improve, enhance, or learn skills
and acquire competencies needed in the agency; and
(iii) The benefits to the agency which would result from selecting
the employee for detail.
(d) Return rights and continuing service requirements for Federal
employees returning from a detail; and
(e) Documentation and recordkeeping requirements sufficient to
allow reconstruction of each action taken under this part to meet
agency reporting requirements under Sec. 370.108(a) and (b).
[FR Doc. 05-16092 Filed 8-12-05; 8:45 am]
BILLING CODE 6325-39-P