[Federal Register Volume 59, Number 234 (Wednesday, December 7, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-30014]


[[Page Unknown]]

[Federal Register: December 7, 1994]


                                                   VOL. 59, NO. 234

                                        Wednesday, December 7, 1994

OFFICE OF PERSONNEL MANAGEMENT

5 CFR Parts 213 and 316

RIN 3206-AF56

 

Temporary Schedule C Positions

AGENCY: Office of Personnel Management.

ACTION: Proposed regulations.

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SUMMARY: The Office of Personnel Management (OPM) proposes to revise 
its regulations which permit agencies to establish temporary Schedule C 
positions in order to assist a department or agency head during the 
period immediately following a change in presidential administration, 
when a new department or agency head has entered on duty, or when a new 
department or agency is created. Agencies currently differentiate 
between identical temporary and new temporary Schedule C positions. 
They are also subject to an overall limit of new positions they may 
establish, which was set over 10 years ago. To simplify the Schedule C 
appointment process and respond to agency needs, OPM proposes to merge 
the two temporary Schedule C authorities into a single temporary 
appointing authority, and to adjust agencies' position quota to a more 
realistic level. OPM is also codifying a requirement in law which deals 
with the detailing of Schedule C incumbents to the White House.

DATES: Comments must be received on or before February 6, 1995.

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:
Sylvia Cole on 202-606-0950 (FAX: 202-606-0390.

SUPPLEMENTARY INFORMATION: Currently, 5 CFR 213.3302 authorizes 
agencies to establish, without prior OPM approval, temporary Schedule C 
positions in order to facilitate the orderly transition of duties 
during a Presidential transition, changes in department or agency 
heads, or changes resulting from the creation of a new department or 
agency. These temporary positions may be either (1) identical to 
existing Schedule C positions (ITC's) if intent to vacate these 
positions has been put in writing by management or the present 
incumbent(s), or (2) new temporary Schedule C positions (NTC's) when it 
has been determined that the department or agency heads' needs cannot 
be met through the establishment of a position identical to an existing 
Schedule C position. Individual appointments may be made for up to 120 
days, with one extension of an additional 120 days. It has been OPM 
policy to permit agencies to make new ITC/NTC appointments up to a year 
after a Presidential transition or the agency head comes on board.
    In order to maintain a reasonable rate of temporary Schedule C 
positions within Government, every agency has a quota of NTC positions 
it may establish. Current regulations set the limit on the number of 
NTC positions established by an agency not to exceed 25 percent of the 
total number of permanent Schedule C positions authorized for that 
agency as of March 31, 1980.
    The regulations governing temporary Schedule C appointments have 
been in effect since 1981 and no longer meet agencies' needs. In 
addition to general confusion over the distinction between the two 
types of temporary Schedule C appointments, some agencies are finding 
it increasingly difficult to live within a NTC quota that is based on 
the number of Schedule C positions that existed over 10 years ago. 
During 1993, OPM granted several exceptions to individual agency NTC 
quotas, by way of a variation under section 5.1 of civil service rule 
V, to meet agencies' needs. To facilitate the appointment process and 
alleviate processing delays, OPM proposes the following changes:

New Temporary Authority

    The ITC and NTC authorities would be replaced by a single temporary 
transitional Schedule C (TTC) authority to assist agencies with their 
staffing needs during a Presidential transition, changes in agency 
heads, or at the time a new agency is created. This new authority will 
incorporate established policy in effect for ITC and NTC appointments, 
such as the time limits for making new appointments (within 1 year 
after the changeover) and the length of individual appointments (up to 
120 days with one 120-day extension). No prior OPM approval would be 
required to make appointments, but agencies would be subject to an 
overall limit on the number of positions they could fill. Agencies 
would also have to notify OPM within 5 working days when a position has 
been encumbered, and within 3 working days when it has been vacated.

Agency Quotas

    In order to maintain a reasonable number of temporary Schedule C 
positions, the number of temporary transitional Schedule C positions 
established by an agency could not exceed either 50 percent of the 
highest number of permanent Schedule C positions filled by that agency 
at any time over the previous 5 years, or three positions, whichever is 
higher. This would create a fluctuating quota of positions directly 
related to the agency's Schedule C activity.

Miscellaneous

    Since FY 91, the Treasury, Postal Service and General Government 
Appropriations Act has required agency heads to certify to OPM, when 
requesting Schedule C exception, that the agency's Schedule C position 
was not created solely or primarily for the purpose of detailing the 
incumbent to the White House. With the sunset of the Federal Personnel 
Manual, we are incorporating this provision of law into the Schedule C 
regulations. The proposed regulations also include editorial changes to 
eliminate an obsolete reference to Schedule C delegation agreements 
which have not existed since 1981, and to renumber and change the order 
of existing paragraphs.
    The proposed regulations also contain a conforming amendment to 
part 316, section 316.403, which deals with provisional appointments, 
to change the terminology of ITC and NTC appointments to temporary 
transitional.

Regulatory Flexibility Act

    I certify that these regulations will not have a significant 
economic impact on a substantial number of small entities (including 
small business, small organizational units, and small governmental 
jurisdictions) because they apply only to Federal employees.

E.O. 12866, Regulatory Review

    This rule has been reviewed by the Office of Management and Budget 
in accordance with Executive Order 12866.

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 proposes to amend 5 CFR part 213 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 8456; E.O. 12364, 47 FR 22931, 3 CFR 1982 Comp., p. 185.

    2. Section 213.3301 is revised and section 213.3301b is removed to 
read as follows:


Sec. 213.3301  Positions of a confidential or policy-determining 
nature.

    (a) Upon specific authorization by OPM, agencies may make 
appointments under this section to positions which are policy-
determining or which involve a close and confidential working 
relationship with the head of an agency or other key appointed 
officials. Positions filled under this authority are excepted from the 
competitive service and constitute Schedule C. Each position will be 
assigned a number from 213.3302 to 213.3999, or other appropriate 
number, to be used by the agency in recording appointments made under 
that authorization.
    (b) When requesting Schedule C exception, agencies must submit to 
OPM a statement signed by the agency head certifying that the position 
was not created solely or primarily for the purpose of detailing the 
incumbent to the White House.
    (c) The exception from the competitive service for each position 
listed in Schedule C by OPM is revoked immediately upon the position 
becoming vacant. An agency shall notify OPM within 3 working days after 
a Schedule C position has been vacated.
    3. Section 213.3302 is revised to read as follows:


Sec. 213.3302  Temporary transitional Schedule C positions.

    (a) An agency may establish temporary transitional Schedule C 
positions necessary to assist a department or agency head during the 1-
year period immediately following a change in presidential 
administration, when a new department or agency head has entered on 
duty, or when a new department or agency is created. These positions 
may be established only to meet legitimate needs of the agency in 
carrying out its mission during the period of transition associated 
with such changeovers. They must be of a confidential or policy-
determining character and are subject to instructions issued by OPM.
    (b) The number of temporary transitional Schedule C positions 
established by an agency cannot exceed either 50 percent of the highest 
number of permanent Schedule C positions filled by that agency at any 
time over the previous 5 years, or three positions, whichever is 
higher. In the event a new department or agency is created, the number 
of temporary transitional positions should be reasonable in light of 
the size and program responsibility of that department or agency.
    (c) Individual appointments under this authority may be made for 
120 days, with one extension of an additional 120 days. They may be 
deemed provisional appointments for purpose of the regulations set out 
in parts 351, 831, 842, 870, and 890 of this chapter if they meet the 
criteria set out in Secs. 316.401 and 316.403 of this chapter.
    (d) An agency shall notify OPM within 5 working days after a 
temporary transitional Schedule C position has been encumbered, and 
within 3 working days when it has been vacated. The agency must also 
submit to OPM a statement signed by the agency head certifying that the 
position was not created solely or primarily for the purpose of 
detailing the incumbent to the White House.

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 316.403, paragraph (b)(3) is revised to read as 
follows:


Sec. 316.403  Designation of provisional appointments.

* * * * *
    (b) * * *
    (3) Temporary transitional Schedule C appointments made under 
Sec. 213.3302 of this chapter, when the appointees are to be converted 
to nontemporary Schedule C appointments upon OPM approval and 
completion of necessary clearances;
* * * * *
[FR Doc. 94-30014 Filed 12-6-94; 8:45 am]
BILLING CODE 6325-01-M