Employment (General); Use of Private Sector Temporaries

SUMMARY: The Office of Personnel Management (OPM) proposes to authorize

Federal agencies to use private sector temporaries for 120 work days

instead of 120 calendar days as currently permitted. Agencies would

continue to 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.

The proposed change would give agencies more flexibility to conduct

their operations, as recommended by the National Performance Review.

DATES: Comments must be received on or before November 7, 1995.

ADDRESSES: Send or deliver written comments to Leonard R. Klein,

Associate Director for Employment, U.S. Office of Personnel Management,

1900 E Street NW., Room 6F08, Washington, DC 20415.

FOR FURTHER INFORMATION CONTACT:

Ellen Russell on 202-606-0830, FAX 202-606-2329, or TDD 202-606-0023.

SUPPLEMENTARY INFORMATION: On January 25, 1989, OPM published [at 54 FR

3762] regulations authorizing Federal agencies to use commercial

temporary help services in two situations: certain employee absences

and critical unexpected workload needs. Because the authority was new

and there were concerns about the possibility of misuse, the timeframes

were deliberately tight. Moreover, the regulations contained two sets

of time limits: a 45-work day limit on using a particular individual

from a temporary help service firm and an overall 120-calendar-day

limit on using temporary help services for any one situation. When

justified, OPM approved agency requests for extensions.

Our review indicates that in the more than 6 years the authority

has been in effect, Federal agencies have appropriately used the

services of temporary help firms. Agencies indicated that their

employees favor the policy because using temporary help services

alleviates extra work pressure and stress during workload peaks and

also makes it easier for employees to get time off for critical

personal needs. Agencies recommended continuing the authority for

temporary help service firms without the 45-day restriction on the use

of same individual from a firm because it was inefficient to retrain a

new person after 45 days.

Although this proposal would permit agencies to use temporary help

services for longer periods, there is no change in the Office of

Personnel Management view that continuing work is most appropriately

performed by permanent Federal employees. On September 13, 1994, OPM

published final regulations [at 59 FR 46895] to ensure that temporary

Federal appointments are used to meet truly short-term needs. As in

those regulations, the limits in this proposal are designed to restrict

the use of temporary help services to short-term needs.

In exercising the discretion to use temporary help services,

agencies are reminded of their labor relations obligations under

Chapter 71 of Title 5 of the U.S. Code and Executive Order 12871.

This proposal would lengthen the time agencies could use temporary

help services for an individual situation from 120 calendar days to 120

workdays. The new 120-workday limit would also apply to an agency's use

of a particular individual from a firm; a change from the current 45-

workday limit in a 6-month period. The proposal would continue the

provision for agencies to request an extension from local OPM service

centers when the need for temporary help services continued beyond the

initial 120 workdays and would specify that OPM could approve an

extension for up to a total of 240 workdays. This would mean that an

agency with OPM approval could use the same individual from a firm for

up to 240 workdays on the same assignment or on a different assignment.

In this context, ``agency'' means a major organizational element,

headquarters or field, of an agency.

The proposal continues the current prohibitions against using

temporary help services to displace Federal employees or in place of

regular civil service procedures for permanent appointment and would

add a prohibition against use of temporary help services to circumvent

controls on employment levels. The proposal also continues current

provisions permitting the use of temporary help services 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 Federal employment within the timeframe needed.

The proposal would change the reporting requirement to OPM from

annual reports to reports on an as-requested basis. Agencies would have

to maintain the records necessary for such reports and for internal

evaluation. The proposed wording more accurately reflects the fact that

agencies have the primary responsibility for oversight. Agency

contracting officers are responsible for proper performance of the

contract for temporary help services. Additionally, agency expenditures

for temporary help services are subject to the full range of internal

controls and oversight, Inspector General reviews, and audits which

apply to every service contract. Agency adherence with these

regulations is subject to review under OPM's regular compliance and

evaluation activities.

Finally, the proposal would make several editorial changes, for

example, deleting reference to the Federal Personnel Manual, a document

abolished on December 31, 1994, and adding a reference to temporary

reassignments and time-limited promotions as mechanisms for agencies to

accomplish work instead of using temporary help firms. The proposal

would also clarify that agencies may not use temporary help services

for the Senior Executive Service or for the work of managerial or

supervisory positions.

[[Page 46781]]

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 an entity 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

recordkeeping requirements, Selective Service System.

Office of Personnel Management.

James B. King,

Director.

Accordingly, OPM proposes to amend 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. secs.

7201, 7204, 7701; E.O. 11478, 3 CFR, 1966-1970 Comp., page 803.

Secs. 300.301 also issues under 5 U.S.C. 1104 and 3341.

Secs. 300.401 through 300.408 also issued under 5 U.S.C. secs.

1302(c), 2301, and 2302.

Secs. 300.501 through 300.507 also issued under 5 U.S.C.

1103(a)(5).

Sec. 300.603 also issued under 5 U.S.C. 1104.

Secs. 300.801 through 300.802 issued under 5 U.S.C. 3328.

1. Section 300.502 is revised to read as follows:

Sec. 300.502 Coverage

(a) The regulations in this subpart apply to the competitive

service and to Schedules A and B in the excepted service.

(b) Agencies may not use temporary help services for Senior

Executive Service or for the work of managerial or supervisory

positions.

2. In Sec. 300.503 paragraph (c)(3) is added to read as follows:

Sec. 300.503 Conditions for using private sector temporaries.

* * * * *

(c) * * *

(3) To circumvent controls on employment levels.

3. In Sec. 300.504, paragraphs (a) and (b) are revised to read as

follows:

Sec. 300.504 Prohibition on employer-employee relationship.

* * * * *

(a) In accordance with the regulations in this subpart, an agency

may use private sector temporaries in a particular situation for no

more than 120 workdays. If the situation justifies use of temporary

help services beyond the initial 120 workdays, the agency may request

OPM authorization for an additional period not to exceed 120 workdays,

up to a total of 240 workdays.

(b) An individual employee of a temporary help firm may work at a

major organizational element (headquarters or field) of an agency for

no more than 120 workdays in a 12 month period. An agency may request

OPM authorization to keep the individual for an additional period not

to exceed 120 workdays up to a total of 240 workdays:

(1) In conjunction with an extension of the overall time limit for

a particular situation, or

(2) For a different situation if the using of the same individual

would be in the interest of good administration.

* * * * *

4. 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.

5. 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 the regulations in this subpart. As needed, OPM may request

agencies to provide information on the extent of their use of temporary

help service firms.

[FR Doc. 95-22317 Filed 9-7-95; 8:45 am]

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