This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

19509

Vol. 61, No. 86

Thursday, May 2, 1996

OFFICE OF PERSONNEL

MANAGEMENT

5 CFR Part 300

RIN 3206–AE80

Employment (General); Use of Private

Sector Temporaries

AGENCY: Office of Personnel

Management.

ACTION: Final regulation.

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
19510 Federal Register / Vol. 61, No. 86 / Thursday, May 2, 1996 / Rules and Regulations

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 § 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 dayto-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-tobargain 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:

§ 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 § 300.503, paragraphs (c)(3) and

(c)(4) are added to read as follows:

§ 300.503 Conditions for using private

sector temporaries.

* * * * *
Federal Register / Vol. 61, No. 86 / Thursday, May 2, 1996 / Rules and Regulations 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 § 300.504, paragraphs (a) and (b)

are revised to read as follows:

§ 300.504 Prohibition on employeremployee 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 § 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:

§ 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:

§ 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]

BILLING CODE 6325–01–M

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 28

[CN–96–001]

Revision of User Fees for 1996 Crop

Cotton Classification Services to

Growers

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Final rule.

SUMMARY: The Agricultural Marketing

Service (AMS) is reducing user fees for

cotton producers for 1996 crop cotton

classification services under the Cotton

Statistics and Estimates Act in

accordance with the formula provided

in the Uniform Cotton Classing Fees Act

of 1987. The 1995 user fee for the

classification service was $1.60 per bale.

This final rule will reduce the fee for the

1996 crop to $1.50 per bale. The

reduced fee is due to increased

efficiency in classing operations, and it

is sufficient to recover the costs of

providing classification services,

including costs for administration,

supervision, and development and

maintenance of standards.

EFFECTIVE DATE: July 1, 1996.

FOR FURTHER INFORMATION CONTACT: Lee

Cliburn, 202–720–2145.

SUPPLEMENTARY INFORMATION: A

proposed rule detailing the revisions

was published in the Federal Register

on February 29, 1996, (61 FR 7756). A

30-day comment period was provided

for interested persons to respond to the

proposed rule; no comments were

received.

This final rule has been determined to

be not significant for purposes of

Executive Order 12866, and therefore it

has not been reviewed by the Office of

Management and Budget (OMB).

This final rule has been reviewed

under Executive Order 12778, Civil

Justice Reform. It is not intended to

have retroactive effect. This rule would

not preempt any state or local laws,

regulations, or policies unless they

present an irreconcilable conflict with

this rule. There are no administrative

procedures which must be exhausted

prior to any judicial challenge to the

provisions of this rule.

The Administrator, Agricultural

Marketing Service (AMS), has

considered the economic impact of this

final rule on small entities pursuant to

the requirements set forth in the

Regulatory Flexibility Act (RFA) (5

U.S.C. 601 et seq.).

The purpose of the RFA is to fit

regulatory actions to the scale of

businesses subject to such actions in

order that small businesses will not be

disproportionately burdened. There are

about 40,000 cotton growers who

voluntarily submit their cotton for the

classification service. The majority of

the growers are small businesses under

the criteria established by the Small

Business Administration. The

Administrator of AMS has certified that

this action will not have a significant

economic impact on a substantial

number of small entities as defined in

the RFA because:

(1) the fee reduction reflects a

decrease in the cost-per-unit currently

borne by those entities utilizing the

services;

(2) the cost reduction will not affect

competition in the marketplace; and

(3) the use of classification services is

voluntary.

In compliance with OMB regulations

(5 CFR part 1320) which implement the

Paperwork Reduction Act (PRA) (44

U.S.C. 3501 et seq.), the information

collection requirements contained in the

provisions amended by this final rule

have been previously approved by OMB

and were assigned OMB control number

0581–0009.

The changes will be made effective

July 1, 1996, as provided by the Cotton

Statistics and Estimates Act.

Fees for Classification Under the Cotton

Statistics and Estimates Act of 1927

The user fee charged to cotton

producers for High Volume Instrument

(HVI) classification services under the

Cotton Statistics and Estimates Act (7

U.S.C. 473a) was $1.60 per bale during

the 1995 harvest season as determined

by using the formula provided in the

Uniform Cotton Classing Fees Act of

1987, as amended by Public Law 102–

237. The fees cover salaries, cost of

equipment and supplies, and other

overhead costs, including costs for

administration, supervision,

development, and maintenance of

cotton standards.

This final rule establishes the user fee

charged to producers for HVI

classification at $1.50 per bale during

the 1996 harvest season.

Public Law 102–237 amended the

formula in the Uniform Cotton Classing

Fees Act of 1987 for establishing the

producer’s classification fee so that the