[Federal Register Volume 60, Number 36 (Thursday, February 23, 1995)]
[Rules and Regulations]
[Pages 10005-10006]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-4394]



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 Rules and Regulations
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  Federal Register / Vol. 60, No. 36 / Thursday, February 23, 1995 / 
Rules and Regulations  
[[Page 10005]]

OFFICE OF PERSONNEL MANAGEMENT

5 CFR Parts 213 and 302

RIN 3206-AF53


Temporary, Seasonal, and Intermittent Employment in the Excepted 
Service

AGENCY: Office of Personnel Management.

ACTION: Final rule.

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SUMMARY: The Office of Personnel Management (OPM) is amending its 
regulations to consolidate excepted service authorities for filling 
temporary, intermittent, and seasonal jobs, to remove coverage for 
appointments that no longer meet the criteria for exception, and to 
establish a new excepted service authority which could be used by 
agencies to meet urgent, short-term hiring needs.

EFFECTIVE DATE: March 27, 1995.

FOR FURTHER INFORMATION CONTACT:
Tracy E. Spencer, (202) 606-0830, or fax (202) 606-2329.

SUPPLEMENTARY INFORMATION: These regulations implement the National 
Performance Review's recommendations to reduce the number of Federal 
hiring authorities and decentralize many personnel decisions. The 
regulations eliminate overlapping and obsolete appointing authorities 
and establish two authorities to meet common needs that may be used by 
any agency without obtaining specific OPM approval.
    On September 26, 1994 (59 FR 49034), OPM published proposed 
regulations to revise and consolidate paragraphs (i) and (m) of section 
213.3102, which both cover temporary, intermittent, and seasonal 
employment in the excepted service. We proposed to establish 
Governmentwide Schedule A authorities for temporary and less-than-full-
time positions in remote or isolated locations involving no more than 
1,040 working hours of employment in a service year and for short-term 
appointments to meet special hiring needs that would not exceed 30 
days, plus one 30-day extension. We also proposed to allow OPM to 
authorize Schedule A appointments in other circumstances and requested 
comments on the need to include authority to make Schedule A temporary 
appointments (i.e., appointments limited to 1 year or less) in 
connection with post-doctoral fellowships, internships, and similar 
programs.
    We received comments from six Federal agencies. All six supported 
the proposed Schedule A authority, although one suggested additional 
exceptions and two made technical and editorial suggestions.

Comments on Coverage

    With regard to fellowship programs, the agencies indicated that 
such appointments are usually made for periods longer than 1 year and 
that an authority limited to temporary employment would have little 
use. We have, therefore, decided not to include a specific provision 
for fellowship appointments in the Schedule A authority for temporary, 
intermittent, and seasonal employment. Any agencies that wish to make 
temporary appointments in connection with post-doctoral fellowship 
programs may, however, request OPM's approval to use the Schedule A 
authority for that purpose.
    One agency suggested that Schedule A appointments should be 
permitted for short-term work lasting up to 90 days (instead of 30 days 
as proposed), with an additional 30-day extension, and for all 
nonsupervisory temporary and seasonal laborer positions at WG-3 and 
below. We did not adopt those suggestions because we cannot find that 
use of competitive hiring procedures to fill the jobs would be 
impracticable.
    Agencies may make temporary appointments in the competitive service 
using the applicant supply file procedures set out in 5 CFR part 333. 
Those procedures are very similar to the procedures for making 
temporary Schedule A appointments set out in 5 CFR part 302. The only 
differences are qualification requirements and public notice.
    Agencies making temporary appointments under part 333 must apply 
competitive qualification standards. However, those standards contain 
only basic generic requirements, to which agencies may add specific 
requirements related to their jobs. For most jobs, there is little 
practical difference between the competitive standards and the 
standards agencies would develop under part 302.
    Agencies making competitive temporary appointments must also notify 
OPM and State Employment Service offices of the vacancies. However, 
there are no mandatory minimum publicity requirements.
    The agencies decide how widely to distribute notices and how long 
the notices will remain open.
    We believe that the competitive hiring procedures are flexible 
enough to meet all but the most urgent staffing needs. We also believe 
that exceptions to basic hiring procedures should be authorized only 
when clearly necessary. Competitive hiring is not impracticable in all 
cases for temporary laborer jobs or for project jobs involving 3 or 4 
months of work. Therefore, we are not establishing a general Schedule A 
authority for such positions. Any agency that needs to fill particular 
jobs more quickly than the competitive process would permit may, of 
course, request OPM's approval to make Schedule A appointments to those 
jobs.

Technical and Editorial Comments

    With regard to procedural requirements, one agency asked whether 
the ranking and referral requirements of 5 CFR part 302 will apply to 
30-day special need appointments under the new Schedule A authority. 
Formal ranking and referral procedures have not previously been 
required for 30-day special need appointments because the time needed 
for that process is not commensurate with the extremely short period of 
employment. That is still true. Accordingly, as provided in 5 CFR 
302.101(c), we are granting an exception from the procedural 
requirements of part 302 for appointments made under the new Schedule A 
special need authority. Agencies must, however, apply veterans' 
preference to the extent administratively feasible.
    The same agency also asked why the service limitation in the 
proposed Schedule A authority for positions in remote or isolated 
locations should apply to all employment in the same agency. The agency 
suggested that the limit should apply only to excepted 
[[Page 10006]] employment in the same or successor positions. We have 
adopted that suggestion in part. We agree that the limit should apply 
separately to positions having different job duties and qualification 
requirements. While a few individuals might be qualified and available 
to perform unrelated functions (e.g., surveyor and pilot), it would not 
be practical for the agency to create a job combining such distinct 
duties. We have rewritten the Schedule A authority to clarify that the 
limit applies to employment in jobs having related duties and 
comparable qualification requirements.
    We have not adopted the suggestion that only excepted employment in 
an identical or successor position should count against the limit. Such 
a broad exclusion from the service limit would undermine the 
justification for the excepted authority. Examining for jobs in remote 
or isolated locations is impracticable when: only residents of the 
immediate area can be expected to reach the work site whenever they are 
needed; the amount of employment involved would not encourage outside 
applicants to move to the isolated area; and staff from an OPM or 
agency examining office could not readily reach the location to 
administer the competitive hiring process. If an agency can make 
competitive appointments to some jobs in a location, can combine 
related work to afford a substantial amount of employment, and/or can 
readily attract candidates from outside the immediate locality, the 
conditions for exception would not be met.
    Another agency suggested that the authority should provide for OPM 
approval of Schedule A appointments for additional ``circumstances'' 
rather than additional ``positions.'' The agency notes that it is not 
always possible to identify in advance all specific positions that may 
be needed in connection with a particular program or situation.
    The wording of the Schedule A authority reflects Civil Service Rule 
VI (5 CFR 6.1), which authorizes OPM to except positions from the 
competitive service. This language does not preclude exception of 
positions based on the circumstances under which they are filled. OPM 
has previously approved Schedule A authorities that cover all positions 
meeting certain conditions or all positions filled in connection with a 
particular program, without listing those positions specifically. We 
will entertain similar requests submitted under this new Schedule A 
authority.

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 in 5 CFR Parts 213 and 302

    Government employees, Reporting and recordkeeping requirements.

U.S. Office of Personnel Management
James B. King,
Director.

    Accordingly, OPM is amending 5 CFR parts 213 and 302 as follows:

PART 213--EXCEPTED SERVICE

    1. The authority citation for part 213 continues 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 8456; E.O. 12364, 47 FR 22931, 3 CFR 1982 Comp., p. 185.

    2. In Sec. 213.3102, paragraph (i) is revised and paragraph (m) is 
removed and reserved, to read as follows:


Sec. 213.3102  Entire executive civil service.

* * * * *
    (i) Temporary and less-than-full time positions for which examining 
is impracticable. These are:
    (1) Positions in remote/isolated locations where examination is 
impracticable. A remote/isolated location is outside the local 
commuting area of a population center from which an employee can 
reasonably be expected to travel on short notice under adverse weather 
and/or road conditions which are normal for the area. For this purpose, 
a population center is a town with housing, schools, health care, 
stores and other businesses in which the servicing examining office can 
schedule tests and/or reasonably expect to attract applicants. An 
individual appointed under this authority may not be employed in the 
same agency under a combination of this and any other appointment to 
positions involving related duties and requiring the same 
qualifications for more than 1,040 workings hour in a service year. 
Temporary appointments under this authority may be extended in 1-year 
increments, with no limit on the number of such extensions, as an 
exception to the service limits in Sec. 213.104.
    (2) Positions for which a critical hiring need exists. This 
includes both short-term positions and continuing positions that an 
agency must fill on an interim basis pending completion of competitive 
examining, clearances, or other procedures required for a longer 
appointment. Appointments under this authority may not exceed 30 days 
and may be extended for up to an additional 30 days if continued 
employment is essential to the agency's operations. The appointments 
may not be used to extend the service limit of any other appointing 
authority. An agency may not employ the same individual under this 
authority for more than 60 days in any 12-month period.
    (3) Other positions for which OPM determines that examining is 
impracticable.
* * * * *

PART 302--EMPLOYMENT IN THE EXCEPTED SERVICE

    3. The authority citation for part 302 continues to read as 
follows:

    Authority: 5 U.S.C. 1302, 3301, 3302, and 8151, E.O. 10577 (3 
CFR 1954-1958 Comp., p. 218); Sec. 302.105 also issued under 5 
U.S.C. 1104, Pub. L. 95-454, sec. 3(5); Sec. 302.501 also issued 
under 5 U.S.C. 7701 et. seq.

    4. In Sec. 302.101, paragraph (c)(11) is added, to read as follows:


Sec. 302.101  Positions covered by the regulations.

* * * * *
    (c) * * *
    (11) Positions for which a critical hiring need exists when filled 
under Sec. 213.3102(i)(2) of this chapter.

[FR Doc. 95-4394 Filed 2-22-95; 8:45 am]
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