Temporary Schedule C Positions

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]

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