Temporary Schedule C Positions

OFFICE OF PERSONNEL MANAGEMENT

5 CFR Parts 213 and 316

RIN 3206-AF56

Temporary Schedule C Positions

AGENCY: Office of Personnel Management.

ACTION: Final rule.

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SUMMARY: The Office of Personnel Management (OPM) is amending 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. To simplify the Schedule C appointment

process, OPM is combining two separate, temporary Schedule C

authorities into a single transitional appointing authority, and is

setting a new overall limit on the number of new positions agencies may

establish.

EFFECTIVE DATE: August 7, 1995.

FOR FURTHER INFORMATION CONTACT: Sylvia Cole, (202) 606-0950, or fax

(202) 606-0390.

SUPPLEMENTARY INFORMATION: On December 7, 1994 (59 FR 63064), OPM

published proposed regulations to merge the Identical Temporary

Schedule C (ITC) and New Temporary Schedule C (NTC) authorities into a

single temporary transitional authority. Agencies could use this

authority without prior OPM approval for up to a year after a

Presidential transition or a new agency head came on board, and

individual appointments could be made for up to 120 days, with one

extension for an additional 120 days.

In addition, OPM proposed to revise the overall limit on the number

of positions an agency could establish to 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.

The proposed regulations also codified a requirement in law on the

detailing of Schedule C incumbents to the White House, and contained a

conforming amendment to part 316, Sec. 316.403, pertaining to

provisional appointments, to change the terminology of ITC and NTC

appointments to temporary transitional.

We received comments from one Federal agency that was in favor of

establishing a single transitional authority, but felt the agency quota

of new positions should be increased or eliminated to reduce potential

delays in filling critical positions. The agency suggested that this

decision should be delegated to the head of each agency. We did not

adopt this suggestion. The quota is designed to permit agencies to

bring a reasonable number of Schedule C appointees on board during

transition periods when OPM may not be able to process agency requests

in a timely manner. Not all Schedule C positions are critical.

Therefore, the quota of 50 percent of the highest number of permanent

Schedule C positions filled at any time over the previous 5 years

should meet the needs of most agencies. However, we recognize there may

be extenuating circumstances in individual cases, and have included a

provision under which OPM may approve increases in the quota to meet

critical needs or in unusual circumstances.

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.

E.O. 12866, Regulatory Review

This rule has been reviewed by the Office of Management and Budget

in accordance with Executive Order 12866.

[[Page 35120]]

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 part 213 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; 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 Sec. 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 Sec. 213.3302 to Sec. 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 reasonable in light of the

size and program responsibility of that department or agency. OPM may

approve an increase in an agency's quota to meet a critical need or in

unusual circumstances.

(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 purposes 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. 95-16545 Filed 7-5-95; 8:45 am]

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