[Federal Register Volume 59, Number 176 (Tuesday, September 13, 1994)]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-22447]
Federal Register / Vol. 59, No. 176 / Tuesday, September 13, 1994 /
[[Page Unknown]]
[Federal Register: September 13, 1994]
VOL. 59, NO. 176
Tuesday, September 13, 1994
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Parts 213 and 316
RIN 3206-AF55
Temporary and Excepted Service Employment
AGENCY: Office of Personnel Management.
ACTION: Final regulations.
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SUMMARY: The Office of Personnel Management (OPM) is revising 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 (24 months total service). This
change is intended to ensure that temporary appointments, under which
employees receive no benefits, are used to meet truly short-term needs.
EFFECTIVE DATE: November 14, 1994.
FOR FURTHER INFORMATION CONTACT:
Tracy E. Spencer, (202) 606-0960, or fax (202) 606-2329.
SUPPLEMENTARY INFORMATION: On February 1, 1994 (59 FR 4601), OPM
published proposed regulations to reduce the time limit for temporary
appointments, curtail use of temporary hiring for extended seasonal
work, and prohibit successive temporary appointments to the same or
successor jobs. We developed those regulations in response to
Congressional and employee concerns and evidence that some employees
were, indeed, serving for years under a succession of temporary
appointments with no benefits and no job security.
The proposed regulations generated numerous comments from agencies,
individual managers and employees, and local employee organizations.
Many of the commenters took opposite positions. Many anticipated
changes that will be proposed in legislation implementing the
recommendations of the National Performance Review (NPR). We could not
adopt all of their suggestions, which are summarized below. We have,
however, attempted to balance their various concerns and to provide
reasonable operating flexibility.
Relationship to NPR
Many of the commenters felt that the proposal did not go far
enough. They stated that the issue of benefits for temporary employees
should be addressed directly by affording benefits and within-grade
increases to temporary employees, that long-term temporaries who have
demonstrated their abilities on the job should not have to compete with
the public for permanent vacancies, and that agencies should be able to
set the length of temporary appointments based on mission needs, not
arbitrary regulations.
OPM supports all of those goals. These regulations are not intended
to be the final solution to all of the problems of temporary
employment. Rather, they are an interim measure to address those issues
within our control pending more comprehensive reform. We expect that
legislation implementing the human resource recommendations of the NPR
will be proposed within the next few months. Until such legislation is
passed, however, OPM has no authority to establish those provisions by
regulation.
We expect that the forthcoming legislative proposal would also
allow agencies to determine the maximum duration of temporary
appointments, subject to collective bargaining or consensus building
procedures. In the meantime, however, we believe that stricter service
limits are needed to ensure that employees who serve for extended
periods are not denied benefits because of their temporary status. We
note that the report of the National Performance Review recommended
that temporary employees should serve no more than 2 years (24 months)
without benefits.
Effect on Current Employees
Many commenters feared that tightening limits on temporary service
could hurt, not help, employees, especially those who have limited
skills, whose conversion to permanent or term appointments would be
blocked by candidates on an agency's reemployment list, or who work in
locations where there are few employment opportunities. We share this
concern. We recognize that some employees may be terminated under the
new limits. On balance, however, we believe that a greater number would
be hurt if we withdrew these regulations.
Employees serving under temporary appointments--even those who have
been reappointed or extended many times--have no guarantee of continued
employment. Contacts with agencies and employees indicate that some
installations are not renewing temporary appointments as readily as in
the past because of reduced funding. Installations facing severe budget
cuts or downsizing are likely to reduce their temporary workforce even
without changes in regulation.
In installations that do not face such severe difficulties, use of
term appointments, which afford benefits, to fill longer-lasting
nonpermanent jobs would provide more stability for both the agency and
the employees. Some agencies expressed concern about losing their
investment in training if employees had to be terminated after 2 years
(24 months total service). Use of term appointments should reduce
turnover and its attendant recruiting and training costs, partially
offsetting the cost of providing benefits for the employees.
Converting Current Employees to Term Appointments Outside the
Register
To facilitate transition from temporary to term appointments,
agencies are authorized to give their current competitive service
temporary employees term appointments outside the register in
accordance with the following conditions:
Duration of Authority
This authority is effective immediately upon publication of these
regulations and will remain in effect for 6 months. (Please note that
this is different from the effective date of the regulations.)
Eligibility
This authority applies to any employee who is serving in the agency
under a temporary appointment in the competitive service on the
publication date and whose service is needed for more than 1 additional
year. Several agencies expressed concern that some positions now filled
by temporary appointments would not meet the conditions for term
appointment. As long as the positions will last for more than 1 year,
that is not true. OPM's current instructions permit term appointments
to be used in the same situations as temporary appointments. The only
difference is the service limit. (Those instructions, provisionally
retained in the Federal Personnel Manual Sunset Document, will be
incorporated in 5 CFR part 316 in a separate regulation implementing
FPM sunset.)
Procedures
Appointments under this authority are subject to the procedures set
out in 5 CFR part 333, except for the public notice requirement in
Sec. 333.102. (Public notice is required by law only when jobs will be
filled from outside the Federal Government.) An agency that will not
convert all eligible temporaries holding identical jobs in the same
location must apply veterans' preference in accordance with part 333 in
selecting the employees to receive term appointment.
Position to Which Converted
Employees converted under this authority must be given term
appointments to positions in the same series, grade, and location as
their temporary positions. Thereafter, they may be reassigned or
promoted to other term positions in accordance with their agency's
merit promotion policies. The appointments may be made for any period
of more than 1 but no more than 4 years, depending on the agency's need
for the employee's services.
Employees Not Converted
Employees who are not converted to term appointments will become
subject to the time limits set out in these regulations when they reach
the expiration date of their current appointments. Their appointments
may be further extended only in accordance with these regulations.
Impact of Downsizing and Need for Flexibility
Several commenters expressed concern that imposing more restrictive
limits now could inhibit agencies' ability to deal with significant
budget reductions and downsizing. They suggested either that authority
to extend temporary appointments beyond 2 years be delegated to
agencies or that OPM consider mission needs and downsizing when acting
on extension requests. One commenter also asked whether agencies would
have to request each extension separately.
Under the regulations, OPM may approve extensions beyond 2 years
(24 months total service) in response to major reorganization,
downsizing, or other unusual circumstances. While normal workload
fluctuations would not meet this condition, an unusual degree of
fluctuation resulting from governmentwide staffing changes and resource
reductions may justify extensions. We will entertain requests on that
basis and consider each agency's situation on its merits.
Requests based on agencywide restructuring downsizing would be
submitted by the agency's headquarters, specifying the conditions,
locations, and timeframe for the extensions. OPM approval would cover
all extensions meeting the agreed upon conditions during the authorized
time period so there would be no need for individual requests. Agencies
would submit individual extension requests to the appropriate OPM
service center to meet one-time needs (e.g., to complete construction
work delayed by unusually severe weather).
Technical Issues
Tracking and Documentation
Several agencies stated that their personnel record systems might
not provide specific information needed to administer the new
requirements (particularly the prohibition against making a new
temporary appointment to a position that had been filled by temporary
appointment for an aggregate of 2 years, or 24 months, of the preceding
3 years). They stated that their systems may not clearly identify
``same or successor'' positions as defined in the regulations. One
agency suggested that the supervisory certification required by the
regulations be accepted as documentation that time limits are met.
Another agency suggested dropping the certification requirement in line
with the NPR recommendation to reduce unproductive paperwork. Some
agencies asked how the limits would apply when an agency has several
identical jobs in the same commuting area.
We have adopted the suggestion to use the supervisory certification
to document compliance with time limits. This suggestion is consistent
with the NPR recommendation to make managers and supervisors
accountable for personnel actions. It is also practical a personnel
officer or higher level official may not have enough information to
determine compliance. The supervisor or manager filling a job knows, or
should know, whether it has previously been filled temporarily and
whether its duties are substantially the same as a previous temporary
position. The supervisory certification is not unproductive paperwork,
but is an alternative to more burdensome tracking requirements.
Under the regulations the time limits apply to positions within the
same local commuting area and major subdivision of the agency. We
believe each agency can and should identify its own major subdivisions.
Often, we expect that these will coincide with the competitive areas
established by the agency for RIF. However, in applying these
regulations, an agency may use any objective criteria that clearly
distinguish separate functional areas.
When an agency has identical positions within a major subdivision
and commuting area, successive temporary appointments to those
positions would be subject to the 2-year (24 month) aggregate
limitation. However, the limit would be calculated separately for
simultaneous temporary appointments to the positions. The difference is
that recurring needs could potentially be met through permanent or term
appointments with a less-than-full-time work schedule. Purely temporary
needs--regardless of the number of jobs involved--could not.
Seasonal Positions
The proposal to permit unlimited extensions of temporary
appointments to jobs involving less than 6 months (1,040 hours) of
seasonal or intermittent work a year raised some practical concerns
among managers and employees in agencies with substantial seasonal or
intermittent hiring. They believe that managers should not be forced to
terminate experienced employees who work more than 6 months in a season
to meet emergency or uncontrollable workload demands.
When employees are regularly needed for 6 months or more in a year,
the seasonal jobs are not truly temporary and should be filled by term
or permanent appointments. However, we agree that flexibility is needed
when an employee who normally works less than 6 months a year exceeds
the limit in a single season. Therefore, the final regulations provide
that OPM may approve exceptions to the 6-month limit. We expect that
most such exceptions will be requested on a case-by-case basis from the
appropriate OPM service center. However, we would consider requests to
use an alternative method of calculation (e.g., averaging service over
several seasons) if an agency demonstrates that its system and its
tracking capacity will produce long-term compliance with the
regulation. Requests for approval of alternate methods should be
submitted through the agency's headquarters.
Some comments also noted the need to train employees for seasonal
work during the off-season. To accommodate this need, the regulations
provide an exception to the 6-month limit for up to 120 days of
training following initial appointment and up to 2 weeks a year
thereafter.
We did not adopt suggestions to exclude all excepted appointments
from the regulatory time limits. The conditions justifying exception
from competitive hiring procedures do not always dictate that
appointments be limited to 1 year. In fact, the situation most commonly
cited as requiring employment longer than 2 years (24 months) was for
research projects. Most excepted authorities covering research
positions provide for appointments in increments longer than 1 year.
Such appointments are not covered by these regulations.
Continuing Authority for Appointments Outside the Competitive Examining
Process
As several commenters noted, the authority to make temporary
appointments for most positions using applicant supply file procedures
is currently set out only in Chapter 316 of the Federal Personnel
Manual. That chapter will be terminated on December 31, 1994, as part
of FPM sunset. We are incorporating the authority in the revised
regulations. We are also adopting an agency's suggestion to remove all
grade level limitations. (The current authority does not apply to
positions at GS-13 through GS-15.)
We did not adopt suggestions to authorize term appointments outside
the register or to permit temporary appointments to be converted to
term appointments without further competition whenever the need for an
employee's services exceeds original expectations. These suggestions
are outside the scope of our regulatory proposal. OPM service centers
may, however, continue to authorize term appointments outside registers
when there are insufficient eligibles on an appropriate register.
Agencies that have delegated examining authority may also elect to fill
temporary and/or term positions through those registers. If the same
register is used for both temporary and term appointments, applicants
who would have been within reach for term appointments may be converted
without further competition. We have clarified this provision in the
regulations. This provision will not apply when positions are
publicized and applications are solicited solely for temporary
appointment.
Reemployed Annuitants
We have not incorporated in the regulations the authority, now
contained in provisionally retained FPM Chapter 316, for unlimited
extensions of temporary employment of reemployed annuitants. That
authority is no longer needed. When the FPM provision was established,
certain annuitants (e.g., those over age 70) could be employed only on
a temporary basis. That is no longer true. Annuitants may now be
employed under any type of authority--permanent, term, or temporary--
that is appropriate for the job being filled. However, under 5 U.S.C.
3323, reemployed annuitants serve at the will of the agency. Therefore,
agencies need not designate their appointments as temporary in order to
retain flexibility.
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.
Office of Personnel Management.
James B. King,
Director.
Accordingly, OPM is amending 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; Sec. 213.101 also issued under 5 U.S.C. 2103;
Sec. 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 Sec. 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 (24 months of total service).
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, or 24 months, 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 unless OPM
approves continued exception under this section. An individual may be
employed for training for up to 120 days following initial appointment
and up to 2 weeks a year thereafter without regard to the service year
limitation.
(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 section 213.3102 of this part 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 (24 months total service) when necessitated by major
reorganizations or base closings or other rare and unusual
circumstances. Requests based on major reorganization, base closing,
restructuring, or other unusual circumstances that apply agencywide
must be made by an official at the headquarters level of the Department
or agency. Requests involving extension of appointments to a specific
position or project based on other unusual circumstances may be
submitted by the employing office to the appropriate OPM service
center.
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); Sec. 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; Sec. 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 Sec. 316.302, paragraph (c)(3) is revised and paragraph
(c)(7) is added 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;
* * * * *
(7) A temporary employee who was within reach for term appointment
to the same position from an appropriate register at the time of his/
her temporary appointment, or during subsequent service in the
position, provided that the register was being used for term
appointments at the time the employee was reached and he or she has
been continuously employed in the position since being reached.
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 (c) 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 of 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. This certification may constitute
appropriate documentation of compliance with the limits set out in
paragraph (c) of this section. 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 (24
months of total service). 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, or 24 months, 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 requirements in paragraph (c) 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. 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 provisions of paragraph
(c) of this section will apply to subsequent extension or reappointment
unless OPM approves continued exception under this section. An
individual may be employed for training for up to 120 days following
initial appointment and up to 2 weeks a year thereafter without regard
to the service year limitation.
(2) OPM will authorize exceptions to the limits set out in
paragraph (c) of this section only when necessitated by major
reorganizations or base closings or other unusual circumstances.
Requests based on major reorganization, base closing, restructuring, or
other unusual circumstances that apply agencywide must be made by an
official at the headquarters level of the Department or agency.
Requests involving extension of appointments to a specific position or
project based on other unusual circumstances may be submitted by the
employing office to the appropriate OPM service center.
7. 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, agencies must make temporary limited appointments either by
selection from a register or outside a register, in accordance with the
procedures set out in 5 CFR part 333.
(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. 94-22447 Filed 9-12-94; 8:45 am]
BILLING CODE 6325-01-M
