Temporary and Excepted Service Employment

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]

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