[Federal Register Volume 59, Number 176 (Tuesday, September 13, 1994)]
[Unknown Section]
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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 /
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[[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.

-----------------------------------------------------------------------

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