[Code of Federal Regulations]
[Title 5, Volume 1]
[Revised as of January 1, 2006]
From the U.S. Government Printing Office via GPO Access
[CITE: 5CFR304.103]

[Page 142-143]
 
                    TITLE 5--ADMINISTRATIVE PERSONNEL
 
                CHAPTER I--OFFICE OF PERSONNEL MANAGEMENT
 
PART 304_EXPERT AND CONSULTANT APPOINTMENTS--Table of Contents
 
Sec. 304.103  Authority.

    (a) Basic authority. (1) When authorized by an appropriation or 
other statute to use 5 U.S.C. 3109, an agency may appoint a qualified 
expert or consultant to an expert or consultant position that requires 
only intermittent and/or temporary employment. Such an appointment is 
excepted from competitive examination, position classification, and the 
General Schedule pay rates.
    (2) An expert or consultant who works on a strictly intermittent 
basis may be appointed under this authority without time limit or for 
any period determined by the agency. All other experts and consultants 
must receive temporary appointments. Temporary experts and consultants 
may be reappointed in the same agency only as provided in paragraph (c) 
of this section.
    (b) Inappropriate use. An agency must not use 5 U.S.C. 3109 to 
appoint an expert or consultant:
    (1) To a position requiring Presidential appointment. However, 
subject to the conditions of this part, an agency may appoint an 
individual awaiting final action on a Presidential appointment to an 
expert or consultant position.
    (2) To a Senior Executive Service position (including an FBI or DEA 
Senior Executive Service position).
    (3) To perform managerial or supervisory work (although an expert 
may act as team leader or director of the specific project for which he/
she is hired), to make final decisions on substantive policies, or to 
otherwise function in the agency chain of command (e.g., to approve 
financial transactions, personnel actions, etc.).

[[Page 143]]

    (4) To do work performed by the agency's regular employees.
    (5) To fill in during staff shortages.
    (6) Solely in anticipation of giving that individual a career 
appointment. However, subject to the conditions of this part, an agency 
may appoint an individual to an expert or consultant position pending 
Schedule C appointment or noncareer appointment in the Senior Executive 
Service.
    (c) Reappointment. An agency may reemploy an expert or consultant to 
perform demonstrably different duties without regard to the length of 
that individual's previous expert or consultant service with the agency. 
Reappointment to perform substantially the same duties is subject to the 
following limits:
    (1) An agency may employ an expert or consultant who works on a 
full-time basis for a maximum of 2 years--i.e., on an initial 
appointment not to exceed 1 year and a reappointment not to exceed 1 
additional year.
    (2) An agency may reappoint an expert or consultant who works on a 
part-time or intermittent schedule in accordance with one of the 
following options. The agency must determine which option it will use in 
advance of any reappointment and must base its determination on 
objective criteria (e.g., nature of duties, pay level, whether or not 
work is regularly scheduled). Option 1 must be applied to reappointments 
of experts and consultants appointed without compensation.
    (i) Option 1--Annual service. An agency may reappoint an expert or 
consultant, with no limit on the number of reappointments, as long as 
the individual is paid for no more than 6 months (130 days or 1,040 
hours) of work, or works for no more than that amount of time without 
compensation, in a service year. (The service year is the calendar year 
that begins on the date of the individual's initial appointment in the 
agency.) An expert or consultant who exceeds this limit in his/her first 
service year may be reappointed for 1 additional year. An expert or 
consultant who exceeds the limit during any subsequent service year may 
not be reappointed thereafter.
    (ii) Option 2--Cumulative earnings. Each expert or consultant will 
have a lifetime limit of twice the maximum annual rate payable under the 
annualized basic pay limitations of section 304.105. The agency may 
adjust this limit to reflect statutory increases in basic pay rates. The 
agency may reappoint an expert or consultant until his/her total 
earnings from expert or consultant employment with the agency reach the 
lifetime maximum, as determined by using the applicable maximum salary 
rate. At that point, the employment must be terminated.
    (3) OPM may authorize reappointment of an expert or consultant as an 
exception to the limits in the section when necessitated by unforeseen 
and unusual circumstances.