Temporary and Excepted Service Employment

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