Employment (General); Use of Private Sector Temporaries

SUMMARY: The Office of Personnel Management (OPM) is issuing final

regulations to authorize Federal agencies to use private sector

temporaries for 120 workdays instead of 120 calendar days. In addition,

agencies are delegated authority to extend the use of private sector

temporaries for up to an additional 120 workdays. Agencies 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.

EFFECTIVE DATE: June 3, 1996.

FOR FURTHER INFORMATION CONTACT: Ellen Russell on 202-606-0830, FAX

202-606-2329, or TDD 202-606-0023.

SUPPLEMENTARY INFORMATION: On September 8, 1995, (60 FR 46780) OPM

published proposed regulations to permit agencies to use temporary help

services for 120 workdays instead of 120 calendar days. Under the

proposal, the new 120-workday limit would also apply to an agency's use

of a particular individual from a firm, a change from the previous 45-

workday limit.

These changes give agencies more flexibility to conduct their

operations, as recommended by the National Performance Review. However,

in exercising their discretion to use temporary help services, agencies

must honor their labor relations obligations under Chapter 71 of Title

5 of the U.S. Code and Executive Order 12871.

OPM maintains its view that continuing work is most appropriately

performed by permanent Federal employees. Thus, the final regulations

continue the prohibitions on using temporary help services to displace

Federal employees or in place of regular civil service procedures for

permanent appointment. The regulations continue previous provisions

permitting the use of temporary help services only when there are no

current agency employees who could be spared to do the work, when there

are no former employees available on the agency's reemployment priority

list, or when there are no applicants available for temporary Federal

employment within the timeframe needed.

In addition, the final regulations add two new prohibitions against

use of temporary help services. First, agencies are not permitted to

use such services to circumvent controls on employment levels. This

means agencies could not use temporary help services merely because

hiring was frozen or ceiling levels were insufficient. Second, agencies

are not permitted to use temporary help services in lieu of appointing

a surplus or displaced Federal employee as required by the President's

memorandum of September 12, 1995, entitled ``Career Transition

Assistance for Federal Employees.'' OPM regulations implementing the

President's memorandum were published on December 29, 1995. These

interim regulations in 5 CFR part 330 provide a new subpart F, Agency

Career Transition Assistance Plans for Local Surplus and Displaced

Employees and a new subpart G, Interagency Career Transition Assistance

Plan for Displaced Employees.

The final regulations replace the annual reporting requirement with

a provision for agencies to report to OPM on an as-requested basis.

Agencies have to maintain the records necessary for such reports and

for their own internal evaluations. Agency adherence to these

regulations continues to be subject to review under OPM's oversight

function.

Finally, the final regulations make several minor editorial

changes.

Comments

We received comments from four Federal agencies, two unions, and

one private sector temporary help services firm.

One agency commenter suggested permitting the use of private sector

temporaries to accomplish project work to help management more

adequately manage changing workloads. We have not adopted this

suggestion because agencies can use temporary or term Federal

appointments to handle project work. Agencies can make temporary

appointments for up to 1 year with one extension of not more than 1

year. Agencies can make term appointments for more than 1 year up to 4

years. Further, the regulations already permit the use of private

sector temporaries for temporary work which cannot be delayed because

of critical need. If an agency could not accomplish a critical project

with current employees or by hiring temporary or term employees, the

agency could use private sector temporaries.

Two agency commenters suggested we drop the requirement for OPM

approval when agencies need to continue the use of private sector

temporaries beyond the 120-workday limit. We agree with this suggestion

and have modified the regulations to delegate the agencies authority to

extend their use of private sector temporaries for a second period of

up to 120 workdays without OPM approval. This change also means that an

agency could use a particular individual from a temporary help services

firm for the initial 120 workdays plus any extension of up to 120

workdays, as approved by the agency, up to a maximum of 240 workdays in

a 24-month period. This limitation on the use of a specific individual

from a temporary help services firm applies to multiple situations

where the use of temporary help services is appropriate. For example, a

major headquarters component of an agency may use a specific

individual, Mr. O, to fill in for an ill employee for up to a maximum

of 240 workdays. That headquarters component could not use Mr. O

again--under any temporary help services contract--until 24 months had

passed from the first day of Mr. O's assignment.

One agency commenter suggested the regulations permit OPM to grant

additional waivers to the 240-workday limit for major reorganizations

due to downsizing, particularly when agencies need clerical support. We

have not adopted this suggestion. The final regulations already provide

for use of

[[Page 19510]]

temporary help services up to a maximum of 240 workdays (nearly a

year). We believe the 240-workday maximum gives agencies ample time to

locate and hire Federal employees, especially in light of the surplus

and displaced Federal employees who will be available as the Government

continues downsizing.

One agency commenter suggested we change the regulations to permit

agencies to use private sector temporaries when employees are on

vacation. Because downsizing has left many agencies shortstaffed, the

commenter believes there may be situations where managers would need to

use temporary help services when a key employee is on vacation.

We do not think this change is necessary because Sec. 300.503(a)(2)

already provides for the use of temporary help services for work which

cannot be delayed in the judgment of the agency because of a critical

need. Although we do not believe the use of temporary help service is

generally appropriate to fill in for Federal employees on vacation, the

need to carry out critical work would be sufficient justification for

the use of temporary help services even if a particular employee were

away on vacation.

One union commenter stated that Federal agencies should be able to

use private sector temporaries only when there is a critical need to

fill a position. Section 300.503 assures this is the case by permitting

use of private sector temporaries 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 employment within

the timeframe needed.

The same commenter objected to the lengthened time limits on use of

temporary help services claiming that the longer timeframe would mean

that the private sector temporary employees would become integrated

into the day-to-day activities of the Federal office and thus become

subject to Federal supervision. Alternatively, the commenter claimed

that, as a result of using private sector temporaries for a longer

period, agency operations and service would suffer because the Federal

manager had no supervisory control over these individuals. The

commenter suggested agencies be permitted to use private sector

temporaries for periods longer than 120 calendar days only when

justified by the kind of analysis required when positions are

contracted out.

We have not adopted this suggestion. We believe that increasing the

maximum time limit from 120 calendar days to 120 workdays, and

permitting agencies to extend for up to another 120 workdays, does not

pose any risk because the basic requirements and prohibitions of the

original regulation remain intact: agencies cannot use temporary help

services to displace Federal employees or to fill permanent jobs;

agencies can use temporary help services only when the need could not

be met with current employees, employees on the agency's reemployment

priority list, or through the direct appointment of temporary Federal

employees within the timeframe required by the agency. In addition, the

final regulations contain additional prohibitions: agencies cannot use

temporary help services to circumvent controls on employment levels or

in lieu of hiring surplus or displaced Federal employee. Given these

conditions, an agency manager would have to determine that using

temporary help services is the only way to maintain necessary services

and operations.

We have, however, changed a provision in response to the union's

concerns. The proposed regulation permitted an agency to use the same

individual from a temporary help services firm for up to 240 workdays,

with OPM approval, in a 12-month period. Thus, the individual could

have worked in an agency office for 240 out of a possible 260 workdays

in each year. We have changed the limitation so that an individual from

a firm could work in an agency office for only 240 workdays in a 24-

month period. The limitation applies to a major organizational element

(headquarters or field) of a agency.

The second union commenter suggested that the regulation require

agencies to bargain on the use of temporary help services. We did not

accept this suggestion because the Federal Labor Relations Authority

(FLRA), not OPM, decides duty-to-bargain issues.

The comments from the private sector firm supported the change from

120 calendar days to 120 workdays.

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 entities 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 record

keeping requirements, Selective Service System.

Office of Personnel Management.

James B. King,

Director.

Accordingly, OPM is amending 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. 7201,

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

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

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

1302(c), 2301, and 2302.

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

1103(a)(5).

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

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

2. Section 300.502 is revised to read as follows:

Sec. 300.502 Coverage.

(a) These regulations apply to the competitive service and to

Schedules A and B in the excepted service.

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

Executive Service or for the work of managerial or supervisory

positions.

3. In Sec. 300.503, paragraphs (c)(3) and (c)(4) are added to read

as follows:

Sec. 300.503 Conditions for using private sector temporaries.

* * * * *

[[Page 19511]]

(c) * * *

(3) To circumvent controls on employment levels.

(4) In lieu of appointing a surplus or displaced Federal employee

as required by 5 CFR part 330, subpart F (Agency Career Transition

Assistance Plan for Displaced Employees) and subpart G (Interagency

Career Transition Assistance Plan for Displaced Employees.)

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

follows:

Sec. 300.504 Prohibition on employer-employee relationship.

* * * * *

(a) Time limit on use of temporary help service firm. An agency may

use a temporary help service firm(s) in a single situation, as defined

in Sec. 300.503, initially for no more than 120 workdays. Provided the

situation continues to exist beyond the initial 120 workdays, the

agency may extend its use of temporary help services up to the maximum

limit of 240 workdays.

(b) Time limit on use of individual employee of a temporary help

service firm. (1) An individual employee of any temporary help firm may

work at a major organizational element (headquarters or field) of an

agency for up to 120 workdays in a 24-month period. The 24-month period

begins on the first day of assignment.

(2) An agency may make an exception for an individual to work up to

a maximum of 240 workdays only when the agency has determined that

using the services of the same individual for the same situation will

prevent significant delay.

* * * * *

5. 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.

6. 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 these regulations. As needed, OPM may require agencies to provide

information on their use of temporary help service firms.

[FR Doc. 96-10739 Filed 5-1-96; 8:45 am]

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