[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