[Federal Register Volume 59, Number 176 (Tuesday, September 13, 1994)] [Unknown Section] [Page 0] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 94-22447] Federal Register / Vol. 59, No. 176 / Tuesday, September 13, 1994 / [[Page Unknown]] [Federal Register: September 13, 1994] VOL. 59, NO. 176 Tuesday, September 13, 1994 OFFICE OF PERSONNEL MANAGEMENT 5 CFR Parts 213 and 316 RIN 3206-AF55 Temporary and Excepted Service Employment AGENCY: Office of Personnel Management. ACTION: Final regulations. ----------------------------------------------------------------------- SUMMARY: The Office of Personnel Management (OPM) is revising its regulations governing use of temporary appointments (i.e., appointments limited to 1 year or less) to set a uniform service limit for such appointments in both the competitive and the excepted service at 1 year with no more than one 1-year extension (24 months total service). This change is intended to ensure that temporary appointments, under which employees receive no benefits, are used to meet truly short-term needs. EFFECTIVE DATE: November 14, 1994. FOR FURTHER INFORMATION CONTACT: Tracy E. Spencer, (202) 606-0960, or fax (202) 606-2329. SUPPLEMENTARY INFORMATION: On February 1, 1994 (59 FR 4601), OPM published proposed regulations to reduce the time limit for temporary appointments, curtail use of temporary hiring for extended seasonal work, and prohibit successive temporary appointments to the same or successor jobs. We developed those regulations in response to Congressional and employee concerns and evidence that some employees were, indeed, serving for years under a succession of temporary appointments with no benefits and no job security. The proposed regulations generated numerous comments from agencies, individual managers and employees, and local employee organizations. Many of the commenters took opposite positions. Many anticipated changes that will be proposed in legislation implementing the recommendations of the National Performance Review (NPR). We could not adopt all of their suggestions, which are summarized below. We have, however, attempted to balance their various concerns and to provide reasonable operating flexibility. Relationship to NPR Many of the commenters felt that the proposal did not go far enough. They stated that the issue of benefits for temporary employees should be addressed directly by affording benefits and within-grade increases to temporary employees, that long-term temporaries who have demonstrated their abilities on the job should not have to compete with the public for permanent vacancies, and that agencies should be able to set the length of temporary appointments based on mission needs, not arbitrary regulations. OPM supports all of those goals. These regulations are not intended to be the final solution to all of the problems of temporary employment. Rather, they are an interim measure to address those issues within our control pending more comprehensive reform. We expect that legislation implementing the human resource recommendations of the NPR will be proposed within the next few months. Until such legislation is passed, however, OPM has no authority to establish those provisions by regulation. We expect that the forthcoming legislative proposal would also allow agencies to determine the maximum duration of temporary appointments, subject to collective bargaining or consensus building procedures. In the meantime, however, we believe that stricter service limits are needed to ensure that employees who serve for extended periods are not denied benefits because of their temporary status. We note that the report of the National Performance Review recommended that temporary employees should serve no more than 2 years (24 months) without benefits. Effect on Current Employees Many commenters feared that tightening limits on temporary service could hurt, not help, employees, especially those who have limited skills, whose conversion to permanent or term appointments would be blocked by candidates on an agency's reemployment list, or who work in locations where there are few employment opportunities. We share this concern. We recognize that some employees may be terminated under the new limits. On balance, however, we believe that a greater number would be hurt if we withdrew these regulations. Employees serving under temporary appointments--even those who have been reappointed or extended many times--have no guarantee of continued employment. Contacts with agencies and employees indicate that some installations are not renewing temporary appointments as readily as in the past because of reduced funding. Installations facing severe budget cuts or downsizing are likely to reduce their temporary workforce even without changes in regulation. In installations that do not face such severe difficulties, use of term appointments, which afford benefits, to fill longer-lasting nonpermanent jobs would provide more stability for both the agency and the employees. Some agencies expressed concern about losing their investment in training if employees had to be terminated after 2 years (24 months total service). Use of term appointments should reduce turnover and its attendant recruiting and training costs, partially offsetting the cost of providing benefits for the employees. Converting Current Employees to Term Appointments Outside the Register To facilitate transition from temporary to term appointments, agencies are authorized to give their current competitive service temporary employees term appointments outside the register in accordance with the following conditions: Duration of Authority This authority is effective immediately upon publication of these regulations and will remain in effect for 6 months. (Please note that this is different from the effective date of the regulations.) Eligibility This authority applies to any employee who is serving in the agency under a temporary appointment in the competitive service on the publication date and whose service is needed for more than 1 additional year. Several agencies expressed concern that some positions now filled by temporary appointments would not meet the conditions for term appointment. As long as the positions will last for more than 1 year, that is not true. OPM's current instructions permit term appointments to be used in the same situations as temporary appointments. The only difference is the service limit. (Those instructions, provisionally retained in the Federal Personnel Manual Sunset Document, will be incorporated in 5 CFR part 316 in a separate regulation implementing FPM sunset.) Procedures Appointments under this authority are subject to the procedures set out in 5 CFR part 333, except for the public notice requirement in Sec. 333.102. (Public notice is required by law only when jobs will be filled from outside the Federal Government.) An agency that will not convert all eligible temporaries holding identical jobs in the same location must apply veterans' preference in accordance with part 333 in selecting the employees to receive term appointment. Position to Which Converted Employees converted under this authority must be given term appointments to positions in the same series, grade, and location as their temporary positions. Thereafter, they may be reassigned or promoted to other term positions in accordance with their agency's merit promotion policies. The appointments may be made for any period of more than 1 but no more than 4 years, depending on the agency's need for the employee's services. Employees Not Converted Employees who are not converted to term appointments will become subject to the time limits set out in these regulations when they reach the expiration date of their current appointments. Their appointments may be further extended only in accordance with these regulations. Impact of Downsizing and Need for Flexibility Several commenters expressed concern that imposing more restrictive limits now could inhibit agencies' ability to deal with significant budget reductions and downsizing. They suggested either that authority to extend temporary appointments beyond 2 years be delegated to agencies or that OPM consider mission needs and downsizing when acting on extension requests. One commenter also asked whether agencies would have to request each extension separately. Under the regulations, OPM may approve extensions beyond 2 years (24 months total service) in response to major reorganization, downsizing, or other unusual circumstances. While normal workload fluctuations would not meet this condition, an unusual degree of fluctuation resulting from governmentwide staffing changes and resource reductions may justify extensions. We will entertain requests on that basis and consider each agency's situation on its merits. Requests based on agencywide restructuring downsizing would be submitted by the agency's headquarters, specifying the conditions, locations, and timeframe for the extensions. OPM approval would cover all extensions meeting the agreed upon conditions during the authorized time period so there would be no need for individual requests. Agencies would submit individual extension requests to the appropriate OPM service center to meet one-time needs (e.g., to complete construction work delayed by unusually severe weather). Technical Issues Tracking and Documentation Several agencies stated that their personnel record systems might not provide specific information needed to administer the new requirements (particularly the prohibition against making a new temporary appointment to a position that had been filled by temporary appointment for an aggregate of 2 years, or 24 months, of the preceding 3 years). They stated that their systems may not clearly identify ``same or successor'' positions as defined in the regulations. One agency suggested that the supervisory certification required by the regulations be accepted as documentation that time limits are met. Another agency suggested dropping the certification requirement in line with the NPR recommendation to reduce unproductive paperwork. Some agencies asked how the limits would apply when an agency has several identical jobs in the same commuting area. We have adopted the suggestion to use the supervisory certification to document compliance with time limits. This suggestion is consistent with the NPR recommendation to make managers and supervisors accountable for personnel actions. It is also practical a personnel officer or higher level official may not have enough information to determine compliance. The supervisor or manager filling a job knows, or should know, whether it has previously been filled temporarily and whether its duties are substantially the same as a previous temporary position. The supervisory certification is not unproductive paperwork, but is an alternative to more burdensome tracking requirements. Under the regulations the time limits apply to positions within the same local commuting area and major subdivision of the agency. We believe each agency can and should identify its own major subdivisions. Often, we expect that these will coincide with the competitive areas established by the agency for RIF. However, in applying these regulations, an agency may use any objective criteria that clearly distinguish separate functional areas. When an agency has identical positions within a major subdivision and commuting area, successive temporary appointments to those positions would be subject to the 2-year (24 month) aggregate limitation. However, the limit would be calculated separately for simultaneous temporary appointments to the positions. The difference is that recurring needs could potentially be met through permanent or term appointments with a less-than-full-time work schedule. Purely temporary needs--regardless of the number of jobs involved--could not. Seasonal Positions The proposal to permit unlimited extensions of temporary appointments to jobs involving less than 6 months (1,040 hours) of seasonal or intermittent work a year raised some practical concerns among managers and employees in agencies with substantial seasonal or intermittent hiring. They believe that managers should not be forced to terminate experienced employees who work more than 6 months in a season to meet emergency or uncontrollable workload demands. When employees are regularly needed for 6 months or more in a year, the seasonal jobs are not truly temporary and should be filled by term or permanent appointments. However, we agree that flexibility is needed when an employee who normally works less than 6 months a year exceeds the limit in a single season. Therefore, the final regulations provide that OPM may approve exceptions to the 6-month limit. We expect that most such exceptions will be requested on a case-by-case basis from the appropriate OPM service center. However, we would consider requests to use an alternative method of calculation (e.g., averaging service over several seasons) if an agency demonstrates that its system and its tracking capacity will produce long-term compliance with the regulation. Requests for approval of alternate methods should be submitted through the agency's headquarters. Some comments also noted the need to train employees for seasonal work during the off-season. To accommodate this need, the regulations provide an exception to the 6-month limit for up to 120 days of training following initial appointment and up to 2 weeks a year thereafter. We did not adopt suggestions to exclude all excepted appointments from the regulatory time limits. The conditions justifying exception from competitive hiring procedures do not always dictate that appointments be limited to 1 year. In fact, the situation most commonly cited as requiring employment longer than 2 years (24 months) was for research projects. Most excepted authorities covering research positions provide for appointments in increments longer than 1 year. Such appointments are not covered by these regulations. Continuing Authority for Appointments Outside the Competitive Examining Process As several commenters noted, the authority to make temporary appointments for most positions using applicant supply file procedures is currently set out only in Chapter 316 of the Federal Personnel Manual. That chapter will be terminated on December 31, 1994, as part of FPM sunset. We are incorporating the authority in the revised regulations. We are also adopting an agency's suggestion to remove all grade level limitations. (The current authority does not apply to positions at GS-13 through GS-15.) We did not adopt suggestions to authorize term appointments outside the register or to permit temporary appointments to be converted to term appointments without further competition whenever the need for an employee's services exceeds original expectations. These suggestions are outside the scope of our regulatory proposal. OPM service centers may, however, continue to authorize term appointments outside registers when there are insufficient eligibles on an appropriate register. Agencies that have delegated examining authority may also elect to fill temporary and/or term positions through those registers. If the same register is used for both temporary and term appointments, applicants who would have been within reach for term appointments may be converted without further competition. We have clarified this provision in the regulations. This provision will not apply when positions are publicized and applications are solicited solely for temporary appointment. Reemployed Annuitants We have not incorporated in the regulations the authority, now contained in provisionally retained FPM Chapter 316, for unlimited extensions of temporary employment of reemployed annuitants. That authority is no longer needed. When the FPM provision was established, certain annuitants (e.g., those over age 70) could be employed only on a temporary basis. That is no longer true. Annuitants may now be employed under any type of authority--permanent, term, or temporary-- that is appropriate for the job being filled. However, under 5 U.S.C. 3323, reemployed annuitants serve at the will of the agency. Therefore, agencies need not designate their appointments as temporary in order to retain flexibility. 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 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 parts 213 and 316 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; 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 8457; E.O. 12364, 47 FR 22931, 3 CFR 1982 Comp., p. 185. 2. Section 213.102 is revised to read as follows: Sec. 213.102 Identification of positions in Schedule A, B, or C. (a) The Office of Personnel Management will decide whether the duties and requirements of any particular position justify exception from the competitive service. Upon favorable determination, OPM will authorize the position to be filled by excepted appointment under Schedule A, B, or C. Unless otherwise specified in a particular appointing authority, an agency may make Schedule A, B, or C appointments on either a permanent or nonpermanent basis, with any appropriate work schedule (i.e., full-time, part-time, seasonal, on- call, or intermittent). (b) When OPM establishes eligibility requirements (e.g., residence, family income) for appointment under particular Schedule A or B exceptions, an individual's eligibility for appointment must be determined before appointment and without regard to any conditions that will result from the appointment. 3. A new Sec. 213.104 is added to read as follows: Sec. 213.104 Special provisions for temporary, intermittent, or seasonal appointments in Schedule A, B, or C. (a) When OPM specifies that appointments under a particular Schedule A, B, or C authority must be temporary, intermittent, or seasonal, or when agencies elect to make temporary, intermittent, or seasonal appointments in Schedule A, B, or C, those terms have the following meanings: (1) Temporary appointments, unless otherwise specified in a particular Schedule A, B, or C exception, are made for a specified period not to exceed 1 year and are subject to the time limits in paragraph (b) of this section. (2) Intermittent positions are positions in which work recurs at sporadic or irregular intervals so that an employee's tour of duty cannot be scheduled in advance of the administrative workweek. (3) Seasonal positions involve annually recurring periods of employment lasting less than 12 months each year. (b) Temporary appointments, as defined in paragraph (a)(1) of this section, are subject to the following limits: (1) Service limits. Agencies may make temporary appointments for a period not to exceed 1 year, unless the applicable Schedule A, B, or C authority specifies a shorter period. Except as provided in paragraph (b)(3) of this section, agencies may extend temporary appointments for no more than 1 additional year (24 months of total service). Appointment to a successor position (i.e., a position that replaces and absorbs the original position) is considered to be an extension of the original appointment. Appointment to a position involving the same basic duties, in the same major subdivision of the agency, and in the same local commuting area is also considered to be an extension of the original appointment. (2) Restrictions on refilling positions under temporary appointments. Except as provided in paragraph (b)(3) of this section, an agency may not fill any position (or its successor) by a temporary appointment in Schedule A, B, or C if that position had previously been filled by temporary appointment(s) in either the competitive or excepted service for an aggregate of 2 years, or 24 months, within the preceding 3-year period. This limitation does not apply to programs established to provide for systematic exchange between a Federal agency and nonfederal organizations. (3) Exceptions to the general limits. The service limits and restrictions on refilling positions set out in this section do not apply when: (i) Positions involve intermittent or seasonal work, and employment in the same or a successor position under one or more appointing authorities totals less than 6 months (1,040 hours), excluding overtime, in a service year. The service year is the calendar year that begins on the date of the employee's initial appointment in the agency. Should employment in a position filled under this exception total 6 months or more in any service year, the general limits set out in this section will apply to subsequent extension or reappointment unless OPM approves continued exception under this section. An individual may be employed for training for up to 120 days following initial appointment and up to 2 weeks a year thereafter without regard to the service year limitation. (ii) Positions are filled under an authority established for the purpose of enabling the appointees to continue or enhance their education, or to meet academic or professional qualification requirements. Such authorities include those set out in paragraphs (p), (q), (v), (w), and (jj) of section 213.3102 of this part and authorities granted to individual agencies for use in connection with internship, fellowship, residency, or student programs. (iii) OPM approves extension of specific temporary appointments beyond 2 years (24 months total service) when necessitated by major reorganizations or base closings or other rare and unusual circumstances. Requests based on major reorganization, base closing, restructuring, or other unusual circumstances that apply agencywide must be made by an official at the headquarters level of the Department or agency. Requests involving extension of appointments to a specific position or project based on other unusual circumstances may be submitted by the employing office to the appropriate OPM service center. 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); Sec. 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; Sec. 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 Sec. 316.302, paragraph (c)(3) is revised and paragraph (c)(7) is added to read as follows: Sec. 316.302 Selection of term employees. * * * * * (c) * * * (3) A person eligible for career or career-conditional appointment under Secs. 315.601, 315.605, 315.606, 315.608, 315.609, or 315.703 of this chapter; * * * * * (7) A temporary employee who was within reach for term appointment to the same position from an appropriate register at the time of his/ her temporary appointment, or during subsequent service in the position, provided that the register was being used for term appointments at the time the employee was reached and he or she has been continuously employed in the position since being reached. 6. Section 316.401 is revised to read as follows: Sec. 316.401 Purpose and duration. (a) Appropriate use. An agency may make a temporary limited appointment-- (1) To fill a short-term position (i.e., one that is not expected to last longer than 1 year); (2) To meet an employment need that is scheduled to be terminated within the timeframe set out in paragraph (c) of this section for such reasons as abolishment, reorganization, or contracting of the function, anticipated reduction in funding, or completion of a specific project or peak workload; or (3) To fill positions on a temporary basis when the positions are expected to be needed for placement of permanent employees who would otherwise be displaced from other parts of the organization. (b) Certification of appropriate use. The supervisor of each position filled by temporary appointment must certify that the employment need is truly temporary and that the proposed appointment meets the regulatory time limits. This certification may constitute appropriate documentation of compliance with the limits set out in paragraph (c) of this section. The reason(s) for making a temporary limited appointment must be stated on the form documenting each such appointment. (c) Time limits--general. (1) An agency may make a temporary appointment for a specified period not to exceed 1 year. The appointment may be extended up to a maximum of 1 additional year (24 months of total service). Appointment to a successor position (i.e., to a position that replaces and absorbs the position to which an individual was originally appointed) is considered to be an extension of the original appointment. Appointment to a position involving the same basic duties and in the same major subdivision of the agency and same local commuting area as the original appointment is also considered to be an extension of the original appointment. (2) An agency may not fill a position by temporary appointment if that position has previously been filled by temporary appointment(s) for an aggregate of 2 years, or 24 months, within the preceding 3-year period. (d) Exceptions to general time limits. (1) Agencies may make and extend temporary appointments to positions involving intermittent or seasonal work without regard to the requirements in paragraph (c) of this section, provided that: (i) Appointments and extensions are made in increments of 1 year or less. (ii) Employment in the same or a successor position under this and any other appointing authority totals less than 6 months (1,040 hours), excluding overtime, in a service year. The service year is the calendar year that begins on the date of the employee's initial appointment in the agency. Should employment in a position filled under this exception total 6 months or more in any service year, the provisions of paragraph (c) of this section will apply to subsequent extension or reappointment unless OPM approves continued exception under this section. An individual may be employed for training for up to 120 days following initial appointment and up to 2 weeks a year thereafter without regard to the service year limitation. (2) OPM will authorize exceptions to the limits set out in paragraph (c) of this section only when necessitated by major reorganizations or base closings or other unusual circumstances. Requests based on major reorganization, base closing, restructuring, or other unusual circumstances that apply agencywide must be made by an official at the headquarters level of the Department or agency. Requests involving extension of appointments to a specific position or project based on other unusual circumstances may be submitted by the employing office to the appropriate OPM service center. 7. In Sec. 316.402, the heading and paragraphs (a) and (b)(3) are revised to read as follows: Sec. 316.402 Procedures for making temporary appointments. (a) General rule. Except as provided in paragraph (b) of this section, agencies must make temporary limited appointments either by selection from a register or outside a register, in accordance with the procedures set out in 5 CFR part 333. (b) * * * (3) A former temporary employee of the agency who was originally appointed from a register or under the provisions of part 333 of this chapter and whose service meets the time limits for reappointment set out in Sec. 316.401; * * * * * [FR Doc. 94-22447 Filed 9-12-94; 8:45 am] BILLING CODE 6325-01-M