[Federal Register Volume 59, Number 21 (Tuesday, February 1, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-1651]
[[Page Unknown]]
[Federal Register: February 1, 1994]
VOL. 59, NO. 21
Tuesday, February 1, 1994
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OFFICE OF PERSONNEL MANAGEMENT
5 CFR Parts 213 and 316
RIN 3206-AF55
Temporary and Excepted Service Employment
AGENCY: Office of Personnel Management.
ACTION: Proposed regulations.
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SUMMARY: The Office of Personnel Management (OPM) proposes to revise
its regulations governing use of temporary appointments (i.e.,
appointments limited to 1 year or less) to set a uniform service limit
for such appointments in both the competitive and the excepted service
at 1 year with no more than one 1-year extension.
DATES: Comments must be received on before April 4, 1994.
ADDRESSES: Send or deliver written comments to Leonard R. Klein,
Associate Director for Career Entry, Office of Personnel Management,
room 6F08, 1900 E Street, NW., Washington, DC 20415.
FOR FURTHER INFORMATION CONTACT: Tracy E. Spencer, (202) 606-0960, or
fax (202) 606-2329.
SUPPLEMENTARY INFORMATION: These proposed regulations deal only with
the time limits applicable to nonpermanent appointments. The proposed
changes would establish safeguards in regulation to ensure that
temporary appointments, under which employees receive no benefits, are
used to meet truly short-term hiring needs. The 2-year service limit
parallels the limit for such appointments recommended by the National
Performance Review.
The report of the National Performance Review also recommended
comprehensive restructuring of the total appointment system. The
National Partnership Council is developing legislation consistent with
the National Performance Review's recommendations for creation of a
more flexible and responsive hiring system. However, implementation of
a new system will require additional time. In the meantime, changes to
the current system are needed to address concerns about inappropriate
use of temporary appointments.
To fill jobs that are likely to be affected by base closings,
realignment, automation and streamlining of work processes, or similar
situations, OPM has authorized use of temporary appointments whenever
continued funding, ceiling, or workload levels are uncertain. Agencies
may extend those appointments, in 1-year increments, up to a total of 4
years. However, the 4-year maximum service limit has blurred the
distinction between temporary and continuing employment and has created
some new concerns.
Since the current 4-year limit applies to the position rather than
to the appointee, some employees serve in several different temporary
positions, thereby accumulating many years of temporary service. Those
employees have expressed concern that they are denied within-grade pay
increases, fringe benefits, and job security afforded to permanent
employees in similar jobs. We believe that the compensation-related
concerns are often justified.
To respond to legitimate concerns, OPM proposes to establish the
new time limits for temporary appointments. The proposed changes would
restrict an agency's ability to use successive temporary appointments
to meet the same employment need. They would not, however, restrict an
individual's eligibility to apply for successive temporary appointments
to different jobs or agencies.
Competitive Service
Temporary appointments in the competitive service would be limited
to a maximum of 1 year, with no more than one 1-year extension at the
agency's discretion. Additional extensions would be permitted, with
prior OPM approval, only when necessary during base closings, major
reorganizations, or in other rare and unusual circumstances. When an
organization has more than one position involving the same basic duties
in the same local commuting area, an appointment to any of those
positions would be considered as an extension of the original
appointment. Similarly, an appointment to a successor position (i.e.,
one that replaced and absorbed the work of the original position) would
be defined as an extension, regardless of any change in grade,
organizational location, etc.
Agencies would be prohibited from making a new temporary
appointment to a position (or its successor) if that position had
previously been filled by temporary appointment(s) for an aggregate of
2 years within the preceding 3-year period. Each temporary appointment
would require supervisory certification that the employment need it
truly temporary with the reasons specified and that the appointment
meets the regulatory time limits.
The proposed time limits would not apply to positions involving
less than 6 months of intermittent or seasonal work each year. ``Work''
for this purpose means time in pay status, not calendar time.
Generally, employees who work less than 6 months a year receive no
benefits. Agencies' needs for such supplemental staff may fluctuate
from year to year. Consequently, the proposed regulations would permit
agencies to hire intermittent or seasonal workers on temporary
appointments, with no limit on the number of extensions or
noncompetitive reappointments, as long as the employees were paid for
less than 1,040 hours each year.
To facilitate transition to the revised appointment limits, OPM
would authorize a one-time use of term appointments outside the
register to permit agencies to convert competitive service temporary
employees in positions that no longer meet the time limits for
temporary appointment, but that are appropriate for filling under term
appointments. The proposed regulations would also permit noncompetitive
conversion from temporary to term appointment whenever OPM or an agency
maintains a register and an employee comes within reach for permanent
appointment from that register while serving in the position under
temporary appointment. (Such authority already exists for conversion to
permanent appointments.)
Excepted Service
Time limits for temporary appointments (i.e., appointments with
time limits of 1 year or less) in the excepted service would generally
be the same as in the competitive service. However, the 2-year service
limit would not apply to appointments in internship, fellowship,
residency, or student programs established primarily to qualify the
employees for a professional occupation, or to further their education.
Student and Stay-in-School appointments under 5 CFR 213.3102(P), (q),
(v), (w), and (jj), or successor authorities, and comparable single-
agency authorities could continue to be made and extended as currently
provided in those authorities. (OPM plans to propose regulations to
revise and consolidate the student appointing authorities in 5 CFR part
213). In addition, the restriction on refilling positions by temporary
appointment would not apply to appointments under those programs or
under programs established to provide for systematic exchange between a
Federal agency and nonfederal organizations.
The proposed regulations in 5 CFR part 213 also include editorial
changes to clarify the relationship of employment conditions to
edibility requirements and to eliminate obsolete references to
delegation agreements covering authority to establish Schedule C
exceptions. No such agreements have existed since 1981, and OPM does
not expect to establish such agreements in the future.
E.O. 12291, Federal Regulation
I have determined that this is not a major rule as defined under
section 1(b) of E.O. 12291, Federal Regulation.
Regulatory Flexibility Act
I certify that these regulations will 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 apply only to Federal employees.
List of Subjects
5 CFR Part 213
Government employees, Reporting and recordkeeping requirements.
5 CFR Part 316
Government employees.
U.S. Office of Personnel Management.
James B. King,
Director.
Accordingly, OPM proposes to amend 5 CFR parts 213 and 316 as
follows:
PART 213--EXCEPTED SERVICE
1. The authority citation for part 213 is revised to read as
follows:
Authority: 5 U.S.C. 3301 and 3302, E.O. 10577, 3 CFR 1954-1958
Comp., p. 218; section 213.101 also issued under 5 U.S.C. 2103;
section 213.3102 also issued under 5 U.S.C. 3301, 3302, 3307,
8337(h), and 8457; E.O. 12364, 47 FR 22931, 3 CFR 1982 Comp., p.
185.
2. Section 213.102 is revised to read as follows:
Sec. 213.102 Identification of positions in Schedule A, B, or C.
(a) The Office of Personnel Management will decide whether the
duties and requirements of any particular position justify exception
from the competitive service. Upon favorable determination, OPM will
authorize the position to be filled by excepted appointment under
Schedule A, B, or C. Unless otherwise specified in a particular
appointing authority, an agency may make Schedule A, B, or C
appointments on either a permanent or nonpermanent basis, with any
appropriate work schedule (i.e., full-time, part-time, seasonal, on-
call, or intermittent).
(b) When OPM establishes eligibility requirements (e.g., residence,
family income) for appointment under particular Schedule A or B
exceptions, an individual's eligibility for appointment must be
determined before appointment and without regard to any conditions that
will result from the appointment.
3. A new section 213.104 is added to read as follows:
Sec. 213.104 Special provisions for temporary, intermittent, or
seasonal appointments in Schedule A, B, or C.
(a) When OPM specifies that appointments under a particular
Schedule A, B, or C authority must be temporary, intermittent, or
seasonal, or when agencies elect to make temporary, intermittent, or
seasonal appointments in Schedule A, B, or C, those terms have the
following meanings:
(1) Temporary appointments, unless otherwise specified in a
particular Schedule A, B, or C exception, are made for a specified
period not to exceed 1 year and are subject to the time limits in
paragraph (b) of this section.
(2) Intermittent positions are positions in which work recurs at
sporadic or irregular intervals so that an employee's tour of duty
cannot be scheduled in advance of the administrative workweek.
(3) Seasonal positions involve annually recurring periods of
employment lasting less than 12 months each year.
(b) Temporary appointments, as defined in paragraph (a)(1) of this
section, are subject to the following limits:
(1) Service limits. Agencies may make temporary appointments for a
period not to exceed 1 year, unless the applicable Schedule A, B, or C
authority specifies a shorter period. Except as provided in paragraph
(b)(3) of this section, agencies may extend temporary appointments for
no more than 1 additional year. Appointment to a successor position
(i.e., a position that replaces and absorbs the original position) is
considered to be an extension of the original appointment. Appointment
to a position involving the same basic duties, in the same major
subdivision of the agency, and in the same local commuting area is also
considered to be an extension of the original appointment.
(2) Restrictions on refilling positions under temporary
appointments. Except as provided in paragraph (b)(3) of this section,
an agency may not fill any position (or its successor) by a temporary
appointment in Schedule A, B, or C if that position had previously been
filled by temporary appointment(s) in either the competitive or
excepted service for an aggregate of 2 years within the preceding 3-
year period. This limitation does not apply to programs established to
provide for systematic exchange between a Federal agency and nonfederal
organizations.
(3) Exceptions to the general limits. The service limits and
restrictions on refilling positions set out in this section do not
apply when:
(i) Positions involve intermittent or seasonal work, and employment
in the same or a successor position under one or more appointing
authorities totals less than 6 months (1,040 hours), excluding
overtime, in a service year. The service year is the calendar year that
begins on the date of the employee's initial appointment in the agency.
Should employment in a position filled under this exception total 6
months or more in any service year, the general limits set out in this
section will apply to subsequent extension or reappointment.
(ii) Positions are filled under an authority established for the
purpose of enabling the appointees to continue or enhance their
education, or to meet academic or professional qualification
requirements. Such authorities include those set out in paragraphs (p),
(q), (v), (w), and (jj) of Sec. 213.3102 and authorities granted to
individual agencies for use in connection with internship, fellowship,
residency, or student programs.
(iii) OPM approves extension of specific temporary appointments
beyond 2 years when necessitated by major reorganizations or base
closings or other rare and unusual circumstances. Requests for such
extensions must be made by an official at the headquarters level of the
Department or agency.
PART 316--TEMPORARY AND TERM EMPLOYMENT
4. The authority citation for part 316 continues to read as
follows:
Authority: 5 U.S.C. 3301, 3302, and E.O. 10577 (3 CFR 1954-1958
Comp., p. 218); section 316.302 also issued under 5 U.S.C. 3304(c),
38 U.S.C. 2014, and E.O. 12362, as revised by E.O. 12585; section
316.402 also issued under 5 U.S.C. 3304(c) and 3312, 22 U.S.C. 2506
(93 Stat. 371), E.O. 12137, 38 U.S.C. 2014, and E.O. 12362, as
revised by E.O. 12585 and E.O. 12721.
5. In section 316.302, paragraph (c)(3) is revised to read as
follows:
Sec. 316.302 Selection of term employees.
* * * * *
(c) * * *
(3) A person eligible for career or career-conditional appointment
under Secs. 315.601, 315.605, 315.606, 315.608, 315.609, or 315.703 of
this chapter;
* * * * *
6. Section 316.401 is revised to read as follows:
Sec. 316.401 Purpose and duration.
(a) Appropriate use. An agency may make a temporary limited
appointment--
(1) To fill a short-term position (i.e., one that is not expected
to last longer than 1 year);
(2) To meet an employment need that is scheduled to be terminated
within the timeframe set out in paragraph (b) of this section for such
reasons as abolishment, reorganization, or contracting of the function,
anticipated reduction in funding, or completion of a specific project
or peak workload; or
(3) To fill positions on a temporary basis when the positions are
expected to be needed for placement or permanent employees who would
otherwise be displaced from other parts of the organization.
(b) Certification of appropriate use. The supervisor of each
position filled by temporary appointment must certify that the
employment need is truly temporary and that the proposed appointment
meets the regulatory time limits. The reason(s) for making a temporary
limited appointment must be stated on the form documenting each such
appointment.
(c) Time limits--general. (1) An agency may make a temporary
appointment for a specified period not to exceed 1 year. The
appointment may be extended up to a maximum of 1 additional year.
Appointment to a successor position (i.e., to a position that replaces
and absorbs the position to which an individual was originally
appointed) is considered to be an extension of the original
appointment. Appointment to a position involving the same basic duties
and in the same major subdivision of the agency and same local
commuting area as the original appointment is also considered to be an
extension of the original appointment.
(2) An agency may not fill a position by temporary appointment if
that position has previously been filled by temporary appointment(s)
for an aggregate of 2 years within the preceding 3-year period.
(d) Exceptions to general time limits. (1) Agencies may make and
extend temporary appointments to positions involving intermittent or
seasonal work without regard to the limits in paragraph (b) of this
section, provided that:
(i) Appointments and extensions are made in increments of 1 year or
less.
(ii) Employment in the same or a successor position under this and
any other appointing authority totals less than 6 months (1,040 hours),
excluding overtime, in a service year. Should employment in a position
filled under this exception total 6 months or more in any service year,
the provisions of paragraph (b) of this section will apply to
subsequent extension or reappointment.
(2) OPM will authorize exceptions to the limits set out in
paragraph (b) of this section only when necessitated by major
reorganizations or base closings or other unusual circumstances.
Requests for such exceptions must be submitted by an official at the
headquarters level of the Department or agency.
6. In Sec. 316.402, the heading and paragraphs (a) and (b)(3) are
revised to read as follows:
Sec. 316.402 Procedures for making temporary appointments.
(a) General rule. Except as provided in paragraph (b) of this
section, or as specifically authorized by OPM, temporary limited
appointments are made by selection from a register. OPM may authorize
an agency to make temporary appointments outside a register, in
accordance with the procedures set out in 5 CFR part 333, upon
determining that registers covering the positions do not exist or are
likely to be inadequate or inappropriate to meet the agency's hiring
needs. When authority to make temporary appointments outside a register
will apply to more than one agency, OPM will provide the conditions for
use of the authority in future guidance to agencies.
(b) * * *
(3) A former temporary employee of the agency who was originally
appointed from a register or under the provisions of Part 333 of this
chapter and whose service meets the time limits for reappointment set
out in Sec. 316.401.
* * * * *
[FR Doc. 94-1651 Filed 1-31-94; 8:45 am]
BILLING CODE 6325-01-M
