Temporary, Seasonal, and Intermittent Employment in the Excepted Service

SUMMARY: The Office of Personnel Management (OPM) is amending its

regulations to consolidate excepted service authorities for filling

temporary, intermittent, and seasonal jobs, to remove coverage for

appointments that no longer meet the criteria for exception, and to

establish a new excepted service authority which could be used by

agencies to meet urgent, short-term hiring needs.

EFFECTIVE DATE: March 27, 1995.

FOR FURTHER INFORMATION CONTACT:

Tracy E. Spencer, (202) 606-0830, or fax (202) 606-2329.

SUPPLEMENTARY INFORMATION: These regulations implement the National

Performance Review's recommendations to reduce the number of Federal

hiring authorities and decentralize many personnel decisions. The

regulations eliminate overlapping and obsolete appointing authorities

and establish two authorities to meet common needs that may be used by

any agency without obtaining specific OPM approval.

On September 26, 1994 (59 FR 49034), OPM published proposed

regulations to revise and consolidate paragraphs (i) and (m) of section

213.3102, which both cover temporary, intermittent, and seasonal

employment in the excepted service. We proposed to establish

Governmentwide Schedule A authorities for temporary and less-than-full-

time positions in remote or isolated locations involving no more than

1,040 working hours of employment in a service year and for short-term

appointments to meet special hiring needs that would not exceed 30

days, plus one 30-day extension. We also proposed to allow OPM to

authorize Schedule A appointments in other circumstances and requested

comments on the need to include authority to make Schedule A temporary

appointments (i.e., appointments limited to 1 year or less) in

connection with post-doctoral fellowships, internships, and similar

programs.

We received comments from six Federal agencies. All six supported

the proposed Schedule A authority, although one suggested additional

exceptions and two made technical and editorial suggestions.

Comments on Coverage

With regard to fellowship programs, the agencies indicated that

such appointments are usually made for periods longer than 1 year and

that an authority limited to temporary employment would have little

use. We have, therefore, decided not to include a specific provision

for fellowship appointments in the Schedule A authority for temporary,

intermittent, and seasonal employment. Any agencies that wish to make

temporary appointments in connection with post-doctoral fellowship

programs may, however, request OPM's approval to use the Schedule A

authority for that purpose.

One agency suggested that Schedule A appointments should be

permitted for short-term work lasting up to 90 days (instead of 30 days

as proposed), with an additional 30-day extension, and for all

nonsupervisory temporary and seasonal laborer positions at WG-3 and

below. We did not adopt those suggestions because we cannot find that

use of competitive hiring procedures to fill the jobs would be

impracticable.

Agencies may make temporary appointments in the competitive service

using the applicant supply file procedures set out in 5 CFR part 333.

Those procedures are very similar to the procedures for making

temporary Schedule A appointments set out in 5 CFR part 302. The only

differences are qualification requirements and public notice.

Agencies making temporary appointments under part 333 must apply

competitive qualification standards. However, those standards contain

only basic generic requirements, to which agencies may add specific

requirements related to their jobs. For most jobs, there is little

practical difference between the competitive standards and the

standards agencies would develop under part 302.

Agencies making competitive temporary appointments must also notify

OPM and State Employment Service offices of the vacancies. However,

there are no mandatory minimum publicity requirements.

The agencies decide how widely to distribute notices and how long

the notices will remain open.

We believe that the competitive hiring procedures are flexible

enough to meet all but the most urgent staffing needs. We also believe

that exceptions to basic hiring procedures should be authorized only

when clearly necessary. Competitive hiring is not impracticable in all

cases for temporary laborer jobs or for project jobs involving 3 or 4

months of work. Therefore, we are not establishing a general Schedule A

authority for such positions. Any agency that needs to fill particular

jobs more quickly than the competitive process would permit may, of

course, request OPM's approval to make Schedule A appointments to those

jobs.

Technical and Editorial Comments

With regard to procedural requirements, one agency asked whether

the ranking and referral requirements of 5 CFR part 302 will apply to

30-day special need appointments under the new Schedule A authority.

Formal ranking and referral procedures have not previously been

required for 30-day special need appointments because the time needed

for that process is not commensurate with the extremely short period of

employment. That is still true. Accordingly, as provided in 5 CFR

302.101(c), we are granting an exception from the procedural

requirements of part 302 for appointments made under the new Schedule A

special need authority. Agencies must, however, apply veterans'

preference to the extent administratively feasible.

The same agency also asked why the service limitation in the

proposed Schedule A authority for positions in remote or isolated

locations should apply to all employment in the same agency. The agency

suggested that the limit should apply only to excepted

[[Page 10006]] employment in the same or successor positions. We have

adopted that suggestion in part. We agree that the limit should apply

separately to positions having different job duties and qualification

requirements. While a few individuals might be qualified and available

to perform unrelated functions (e.g., surveyor and pilot), it would not

be practical for the agency to create a job combining such distinct

duties. We have rewritten the Schedule A authority to clarify that the

limit applies to employment in jobs having related duties and

comparable qualification requirements.

We have not adopted the suggestion that only excepted employment in

an identical or successor position should count against the limit. Such

a broad exclusion from the service limit would undermine the

justification for the excepted authority. Examining for jobs in remote

or isolated locations is impracticable when: only residents of the

immediate area can be expected to reach the work site whenever they are

needed; the amount of employment involved would not encourage outside

applicants to move to the isolated area; and staff from an OPM or

agency examining office could not readily reach the location to

administer the competitive hiring process. If an agency can make

competitive appointments to some jobs in a location, can combine

related work to afford a substantial amount of employment, and/or can

readily attract candidates from outside the immediate locality, the

conditions for exception would not be met.

Another agency suggested that the authority should provide for OPM

approval of Schedule A appointments for additional ``circumstances''

rather than additional ``positions.'' The agency notes that it is not

always possible to identify in advance all specific positions that may

be needed in connection with a particular program or situation.

The wording of the Schedule A authority reflects Civil Service Rule

VI (5 CFR 6.1), which authorizes OPM to except positions from the

competitive service. This language does not preclude exception of

positions based on the circumstances under which they are filled. OPM

has previously approved Schedule A authorities that cover all positions

meeting certain conditions or all positions filled in connection with a

particular program, without listing those positions specifically. We

will entertain similar requests submitted under this new Schedule A

authority.

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 in 5 CFR Parts 213 and 302

Government employees, Reporting and recordkeeping requirements.

U.S. Office of Personnel Management

James B. King,

Director.

Accordingly, OPM is amending 5 CFR parts 213 and 302 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; 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 8456; E.O. 12364, 47 FR 22931, 3 CFR 1982 Comp., p. 185.

2. In Sec. 213.3102, paragraph (i) is revised and paragraph (m) is

removed and reserved, to read as follows:

Sec. 213.3102 Entire executive civil service.

* * * * *

(i) Temporary and less-than-full time positions for which examining

is impracticable. These are:

(1) Positions in remote/isolated locations where examination is

impracticable. A remote/isolated location is outside the local

commuting area of a population center from which an employee can

reasonably be expected to travel on short notice under adverse weather

and/or road conditions which are normal for the area. For this purpose,

a population center is a town with housing, schools, health care,

stores and other businesses in which the servicing examining office can

schedule tests and/or reasonably expect to attract applicants. An

individual appointed under this authority may not be employed in the

same agency under a combination of this and any other appointment to

positions involving related duties and requiring the same

qualifications for more than 1,040 workings hour in a service year.

Temporary appointments under this authority may be extended in 1-year

increments, with no limit on the number of such extensions, as an

exception to the service limits in Sec. 213.104.

(2) Positions for which a critical hiring need exists. This

includes both short-term positions and continuing positions that an

agency must fill on an interim basis pending completion of competitive

examining, clearances, or other procedures required for a longer

appointment. Appointments under this authority may not exceed 30 days

and may be extended for up to an additional 30 days if continued

employment is essential to the agency's operations. The appointments

may not be used to extend the service limit of any other appointing

authority. An agency may not employ the same individual under this

authority for more than 60 days in any 12-month period.

(3) Other positions for which OPM determines that examining is

impracticable.

* * * * *

PART 302--EMPLOYMENT IN THE EXCEPTED SERVICE

3. The authority citation for part 302 continues to read as

follows:

Authority: 5 U.S.C. 1302, 3301, 3302, and 8151, E.O. 10577 (3

CFR 1954-1958 Comp., p. 218); Sec. 302.105 also issued under 5

U.S.C. 1104, Pub. L. 95-454, sec. 3(5); Sec. 302.501 also issued

under 5 U.S.C. 7701 et. seq.

4. In Sec. 302.101, paragraph (c)(11) is added, to read as follows:

Sec. 302.101 Positions covered by the regulations.

* * * * *

(c) * * *

(11) Positions for which a critical hiring need exists when filled

under Sec. 213.3102(i)(2) of this chapter.

[FR Doc. 95-4394 Filed 2-22-95; 8:45 am]

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