[Federal Register Volume 61, Number 86 (Thursday, May 2, 1996)]
[Rules and Regulations]
[Pages 19509-19511]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10739]



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 Rules and Regulations
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  Federal Register / Vol. 61, No. 86 / Thursday, May 2, 1996 / Rules 
and Regulations  

[[Page 19509]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 300

RIN 3206-AE80


Employment (General); Use of Private Sector Temporaries

AGENCY: Office of Personnel Management.

ACTION: Final regulation.

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

SUMMARY: The Office of Personnel Management (OPM) is issuing final 
regulations to authorize Federal agencies to use private sector 
temporaries for 120 workdays instead of 120 calendar days. In addition, 
agencies are delegated authority to extend the use of private sector 
temporaries for up to an additional 120 workdays. Agencies purchase 
temporary help services through the Federal procurement process 
following all applicable laws and regulations relating to the purchase 
of goods or services from the private sector.

EFFECTIVE DATE: June 3, 1996.

FOR FURTHER INFORMATION CONTACT: Ellen Russell on 202-606-0830, FAX 
202-606-2329, or TDD 202-606-0023.

SUPPLEMENTARY INFORMATION: On September 8, 1995, (60 FR 46780) OPM 
published proposed regulations to permit agencies to use temporary help 
services for 120 workdays instead of 120 calendar days. Under the 
proposal, the new 120-workday limit would also apply to an agency's use 
of a particular individual from a firm, a change from the previous 45-
workday limit.
    These changes give agencies more flexibility to conduct their 
operations, as recommended by the National Performance Review. However, 
in exercising their discretion to use temporary help services, agencies 
must honor their labor relations obligations under Chapter 71 of Title 
5 of the U.S. Code and Executive Order 12871.
    OPM maintains its view that continuing work is most appropriately 
performed by permanent Federal employees. Thus, the final regulations 
continue the prohibitions on using temporary help services to displace 
Federal employees or in place of regular civil service procedures for 
permanent appointment. The regulations continue previous provisions 
permitting the use of temporary help services only when there are no 
current agency employees who could be spared to do the work, when there 
are no former employees available on the agency's reemployment priority 
list, or when there are no applicants available for temporary Federal 
employment within the timeframe needed.
    In addition, the final regulations add two new prohibitions against 
use of temporary help services. First, agencies are not permitted to 
use such services to circumvent controls on employment levels. This 
means agencies could not use temporary help services merely because 
hiring was frozen or ceiling levels were insufficient. Second, agencies 
are not permitted to use temporary help services in lieu of appointing 
a surplus or displaced Federal employee as required by the President's 
memorandum of September 12, 1995, entitled ``Career Transition 
Assistance for Federal Employees.'' OPM regulations implementing the 
President's memorandum were published on December 29, 1995. These 
interim regulations in 5 CFR part 330 provide a new subpart F, Agency 
Career Transition Assistance Plans for Local Surplus and Displaced 
Employees and a new subpart G, Interagency Career Transition Assistance 
Plan for Displaced Employees.
    The final regulations replace the annual reporting requirement with 
a provision for agencies to report to OPM on an as-requested basis. 
Agencies have to maintain the records necessary for such reports and 
for their own internal evaluations. Agency adherence to these 
regulations continues to be subject to review under OPM's oversight 
function.
    Finally, the final regulations make several minor editorial 
changes.

Comments

    We received comments from four Federal agencies, two unions, and 
one private sector temporary help services firm.
    One agency commenter suggested permitting the use of private sector 
temporaries to accomplish project work to help management more 
adequately manage changing workloads. We have not adopted this 
suggestion because agencies can use temporary or term Federal 
appointments to handle project work. Agencies can make temporary 
appointments for up to 1 year with one extension of not more than 1 
year. Agencies can make term appointments for more than 1 year up to 4 
years. Further, the regulations already permit the use of private 
sector temporaries for temporary work which cannot be delayed because 
of critical need. If an agency could not accomplish a critical project 
with current employees or by hiring temporary or term employees, the 
agency could use private sector temporaries.
    Two agency commenters suggested we drop the requirement for OPM 
approval when agencies need to continue the use of private sector 
temporaries beyond the 120-workday limit. We agree with this suggestion 
and have modified the regulations to delegate the agencies authority to 
extend their use of private sector temporaries for a second period of 
up to 120 workdays without OPM approval. This change also means that an 
agency could use a particular individual from a temporary help services 
firm for the initial 120 workdays plus any extension of up to 120 
workdays, as approved by the agency, up to a maximum of 240 workdays in 
a 24-month period. This limitation on the use of a specific individual 
from a temporary help services firm applies to multiple situations 
where the use of temporary help services is appropriate. For example, a 
major headquarters component of an agency may use a specific 
individual, Mr. O, to fill in for an ill employee for up to a maximum 
of 240 workdays. That headquarters component could not use Mr. O 
again--under any temporary help services contract--until 24 months had 
passed from the first day of Mr. O's assignment.
    One agency commenter suggested the regulations permit OPM to grant 
additional waivers to the 240-workday limit for major reorganizations 
due to downsizing, particularly when agencies need clerical support. We 
have not adopted this suggestion. The final regulations already provide 
for use of

[[Page 19510]]

temporary help services up to a maximum of 240 workdays (nearly a 
year). We believe the 240-workday maximum gives agencies ample time to 
locate and hire Federal employees, especially in light of the surplus 
and displaced Federal employees who will be available as the Government 
continues downsizing.
    One agency commenter suggested we change the regulations to permit 
agencies to use private sector temporaries when employees are on 
vacation. Because downsizing has left many agencies shortstaffed, the 
commenter believes there may be situations where managers would need to 
use temporary help services when a key employee is on vacation.
    We do not think this change is necessary because Sec. 300.503(a)(2) 
already provides for the use of temporary help services for work which 
cannot be delayed in the judgment of the agency because of a critical 
need. Although we do not believe the use of temporary help service is 
generally appropriate to fill in for Federal employees on vacation, the 
need to carry out critical work would be sufficient justification for 
the use of temporary help services even if a particular employee were 
away on vacation.
    One union commenter stated that Federal agencies should be able to 
use private sector temporaries only when there is a critical need to 
fill a position. Section 300.503 assures this is the case by permitting 
use of private sector temporaries only when there are no current agency 
employees who could be spared to do the work, there are no former 
employees available on the agency's reemployment priority list, and 
when there are no applicants available for temporary employment within 
the timeframe needed.
    The same commenter objected to the lengthened time limits on use of 
temporary help services claiming that the longer timeframe would mean 
that the private sector temporary employees would become integrated 
into the day-to-day activities of the Federal office and thus become 
subject to Federal supervision. Alternatively, the commenter claimed 
that, as a result of using private sector temporaries for a longer 
period, agency operations and service would suffer because the Federal 
manager had no supervisory control over these individuals. The 
commenter suggested agencies be permitted to use private sector 
temporaries for periods longer than 120 calendar days only when 
justified by the kind of analysis required when positions are 
contracted out.
    We have not adopted this suggestion. We believe that increasing the 
maximum time limit from 120 calendar days to 120 workdays, and 
permitting agencies to extend for up to another 120 workdays, does not 
pose any risk because the basic requirements and prohibitions of the 
original regulation remain intact: agencies cannot use temporary help 
services to displace Federal employees or to fill permanent jobs; 
agencies can use temporary help services only when the need could not 
be met with current employees, employees on the agency's reemployment 
priority list, or through the direct appointment of temporary Federal 
employees within the timeframe required by the agency. In addition, the 
final regulations contain additional prohibitions: agencies cannot use 
temporary help services to circumvent controls on employment levels or 
in lieu of hiring surplus or displaced Federal employee. Given these 
conditions, an agency manager would have to determine that using 
temporary help services is the only way to maintain necessary services 
and operations.
    We have, however, changed a provision in response to the union's 
concerns. The proposed regulation permitted an agency to use the same 
individual from a temporary help services firm for up to 240 workdays, 
with OPM approval, in a 12-month period. Thus, the individual could 
have worked in an agency office for 240 out of a possible 260 workdays 
in each year. We have changed the limitation so that an individual from 
a firm could work in an agency office for only 240 workdays in a 24-
month period. The limitation applies to a major organizational element 
(headquarters or field) of a agency.
    The second union commenter suggested that the regulation require 
agencies to bargain on the use of temporary help services. We did not 
accept this suggestion because the Federal Labor Relations Authority 
(FLRA), not OPM, decides duty-to-bargain issues.
    The comments from the private sector firm supported the change from 
120 calendar days to 120 workdays.

Regulatory Flexibility Act

    I certify that these regulations will not have a significant 
economic impact on a substantial number of small entities for the 
following reasons:
    1. OPM is not regulating entities (including businesses) of any 
size, or imposing record keeping, reporting, or other compliance 
requirements on them. OPM is regulating the conduct of Federal agencies 
if they choose to use temporary help firms.
    2. The requirements entities must observe are generated through an 
agency-initiated contracting process featuring competitive bidding 
under the already-established, statutory Federal procurement system. 
That system applies to all contractors providing goods and services to 
the Government. The entities affected by that system are those who seek 
a contract. Those who win a contract receive a beneficial economic 
impact.

Executive Order 12866, Regulatory Review

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

List of Subjects in 5 CFR Part 300

    Freedom of information, Government employees, Reporting and record 
keeping requirements, Selective Service System.

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

    Accordingly, OPM is amending part 300 of title 5, Code of Federal 
Regulations, as follows:

PART 300--EMPLOYMENT (GENERAL)

    1. The authority citation for part 300 is revised to read as 
follows:

    Authority: 5 U.S.C. 552, 3301, 3302; E.O. 10577, 3 CFR, 1954-
1958 Comp., page 218, unless otherwise noted.
    Secs. 300.101 through 300.104 also issued under 5 U.S.C. 7201, 
7204, 7701; E.O. 11478, 3 CFR, 1966-1970 Comp., page 803.
    Secs. 300.301 also issued under 5 U.S.C. 1104 and 3341.
    Secs. 300.401 through 300.408 also issued under 5 U.S.C. 
1302(c), 2301, and 2302.
    Secs. 300.501 through 300.507 also issued under 5 U.S.C. 
1103(a)(5).
    Secs. 300.603 also issued under 5 U.S.C. 1104.
    Secs. 300.801 through 300.802 issued under 5 U.S.C. 3328.

    2. Section 300.502 is revised to read as follows:


Sec. 300.502  Coverage.

    (a) These regulations apply to the competitive service and to 
Schedules A and B in the excepted service.
    (b) Agencies may not use temporary help services for the Senior 
Executive Service or for the work of managerial or supervisory 
positions.
    3. In Sec. 300.503, paragraphs (c)(3) and (c)(4) are added to read 
as follows:


Sec. 300.503  Conditions for using private sector temporaries.

* * * * *

[[Page 19511]]

    (c) * * *
    (3) To circumvent controls on employment levels.
    (4) In lieu of appointing a surplus or displaced Federal employee 
as required by 5 CFR part 330, subpart F (Agency Career Transition 
Assistance Plan for Displaced Employees) and subpart G (Interagency 
Career Transition Assistance Plan for Displaced Employees.)
    4. In Sec. 300.504, paragraphs (a) and (b) are revised to read as 
follows:


Sec. 300.504  Prohibition on employer-employee relationship.

* * * * *
    (a) Time limit on use of temporary help service firm. An agency may 
use a temporary help service firm(s) in a single situation, as defined 
in Sec. 300.503, initially for no more than 120 workdays. Provided the 
situation continues to exist beyond the initial 120 workdays, the 
agency may extend its use of temporary help services up to the maximum 
limit of 240 workdays.
    (b) Time limit on use of individual employee of a temporary help 
service firm. (1) An individual employee of any temporary help firm may 
work at a major organizational element (headquarters or field) of an 
agency for up to 120 workdays in a 24-month period. The 24-month period 
begins on the first day of assignment.
    (2) An agency may make an exception for an individual to work up to 
a maximum of 240 workdays only when the agency has determined that 
using the services of the same individual for the same situation will 
prevent significant delay.
* * * * *
    5. Section 300.505 is revised to read as follows:


Sec. 300.505  Relationship of civil service procedures.

    Agencies continue to have full authority to meet their temporary 
needs by various means, for example, redistributing work, authorizing 
overtime, using in-house pools, and making details or time-limited 
promotions of current employees. In addition, agencies may appoint 
individuals as civil service employees on various work schedules 
appropriate for the work to be performed.
    6. Section 300.507 is revised to read as follows:


Sec. 300.507  Documentation and Oversight.

    Agencies are required to maintain records and provide oversight to 
establish that their use of temporary help service firms is consistent 
with these regulations. As needed, OPM may require agencies to provide 
information on their use of temporary help service firms.

[FR Doc. 96-10739 Filed 5-1-96; 8:45 am]
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