Temporary and Term Employment

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

regulations on nonpermanent employment as part of continuing efforts to

streamline the appointing system. The proposal would eliminate the

authority for temporary appointments pending the establishment of a

register (TAPER) as well as the ``outside-the-register authority'' for

term appointments. The proposal would give OPM authority to extend the

length of term appointments when justified, clarify the crediting of

prior service for the required trial period, and allow certain excepted

service employees whose positions are brought into the competitive

service to serve the full 4-year period allowed for term appointment.

The proposal would also add four categories of individuals to the list

of those eligible for noncompetitive temporary and term appointments on

the basis that they are currently eligible for permanent appointment

and would clarify the conditions for making nonpermanent appointments

based on a veteran's eligibility for a veterans readjustment

appointment (VRA). To help agencies control the costs of workers'

compensation by returning more injured employees to duty, the proposal

would permit the reappointment of injured temporaries to any position

for which qualified. Finally, the proposal would eliminate references

to the former Federal Personnel Manual.

DATES: Comments must be received on or before November 8, 1996.

ADDRESSES: Send or deliver written comments to Mary Lou Lindholm,

Associate Director for Employment, Office of Personnel Management, Room

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

FOR FURTHER INFORMATION CONTACT:

Ellen Russell or Karen Jacobs on 202-606-0830, FAX 202-606-2329, or TDD

202-606-0023.

SUPPLEMENTARY INFORMATION:

Length of Term Appointments

Agencies were authorized in 1962 to use term appointments of up to

4 years for project work with prior approval of the Civil Service

Commission. A few years later, the Commission delegated full authority

to agencies. On January 13, 1995, OPM broadened the conditions under

which agencies could make term appointments to include nonpermanent

situations other than project work. See Sec. 316.301.

Some agencies have questioned whether they could make a second term

appointment of an individual to the same position when the need for the

employee continued beyond the 4-year limit. The appropriate procedure

would be for the agency to document the reasons for the continued need

of the individual and seek OPM approval to extend the term appointment.

Although the current regulations do not prohibit consecutive term

appointments as long as the agency follows appropriate competitive

hiring procedures, the need for more than one term appointment suggests

that a permanent appointment may be more appropriate.

This proposal would allow OPM, where clearly justified, to

authorize extensions beyond the 4-year limit, including extensions in

advance. Currently, OPM permits agencies to extend term appointments

under certain conditions by issuing a variation to the regulations

under Sec. 5.1. The proposed regulatory provision permitting OPM to

authorize extensions would change the form, not the substance, of the

procedure in order to reduce paperwork.

We also propose to clarify that agencies may make term appointments

in any increments so long as the appointment is for more than 1 year

and no more than 4 years. For example, when an agency makes a term

appointment for 13 months, the agency may extend that appointment up to

the 4-year limit in as many increments as the agency chooses. The

vacancy announcement for a term appointment of less than 4 years should

make clear the possibility of extension up to the 4-year limit.

Eliminating Outside-the-Register Mechanism for Term Appointments

The proposal would eliminate the outside-the-register hiring

mechanism for term appointments. In the past when OPM (or agencies

under delegated examining) maintained standing registers, it was

appropriate for the register-holding office to authorize outside-the-

register appointments when those registers did not have candidates

available for certification. However, as delegation of examining

increased, OPM authorized fewer outside-the-register authorities. At

this point, totally eliminating term appointments outside-the-register

would be consistent with the new face of competitive examining. Now

that OPM has delegated full examining authority to agencies, the

outside-the-register mechanism is not necessary for term appointments.

Agencies are in full control of the examining process and can announce

individual vacancies as they occur. Also, since term appointees may

serve for long periods of time and since they have benefits similar to

permanent employees, it is appropriate that term and permanent

employees be appointed in the same manner.

Trial Period for Term Appointment

The proposal would require crediting prior service toward the trial

period required for term appointment in the same way that prior service

is credited for probation, i.e., same agency, same line of work, and no

more than a single break in service not exceeding 30 days. See

Sec. 315.802.

Crediting Excepted Service Toward Time Limit for Term Appointment

The proposal would allow former excepted employees whose positions

were brought into the competitive service when OPM revoked an excepted

authority to serve up to the full 4-year period for term appointment

rather than have the amount of their prior time-limited excepted

service subtracted from the maximum time limit for term appointment.

This change in Sec. 316.702 would give agencies more flexibility

without harming employees who are already eligible for benefits.

[[Page 47451]]

Categories Eligible for Noncompetitive Term and Temporary

Appointments

The current regulations indicate the categories of individuals

eligible for noncompetitive term and temporary appointments based on

their eligibility for permanent appointment under various authorities.

In this proposal, we would add that appointments under 5 U.S.C.

3304(c), commonly referred to as Ramspeck appointments, can no longer

be made after December 18, 1997, as provided by Pub. L. 104-65, the

Lobbying Disclosure Act of 1995. We would also clarify that

noncompetitive term and temporary appointments based on an individual's

eligibility for a veterans readjustment appointment (VRA) are permitted

only at the grade levels authorized for VRA appointments but that the

temporary or term appointments are not VRA appointments themselves and

do not lead to conversion to career-conditional. (This longstanding

policy was stated in the former Federal Personnel Manual.)

The proposal would also add four categories of individuals to the

list of those eligible for noncompetitive temporary and term

appointments on the basis that they are currently eligible for

permanent appointment. The categories are: current and former General

Accounting Office employees (31 U.S.C. 732[g]); current and former

employees of the Administrative Office of the U.S. Courts (Pub. L. 101-

474); disabled veterans who have completed training prescribed by the

VA under title 38 (5 CFR 315.604); and readers, interpreters, and

personal assistants whose employment under Schedule A is no longer

necessary (5 CFR 315.711).

We did not include other categories of individuals eligible for

noncompetitive appointment under authorities that specifically require

no break in service, e.g. current Postal employees because in such

situations, an employee who took a temporary or term appointment would

lose his or her eligibility for a permanent appointment.

Selecting Term Employees for Permanent Positions

We have received questions about the current regulation

Sec. 315.703 that permits the conversion of term appointees to

permanent appointment under very limited conditions. Conversion is

possible only when all the conditions of Sec. 315.703 are met including

the requirement that the term employee must have been within reach for

permanent appointment. In this context, within reach means that the

term employee could have been selected for a permanent position that

was actually announced and filled. It is not sufficient for the vacancy

announcement to have stated that positions could be filled by term or

permanent appointment or that an individual selected for a term

appointment might later be converted to a permanent appointment without

further competition.

Temporary Employees Injured on the Job

The proposal would permit agencies to reappoint noncompetitively

former temporary employees who were injured on the job to any position

for which they qualify if their injury disqualified them for

reappointment to their original position or one with the same

qualification requirements. Time under the initial appointment and

reappointment must adhere to the limits for temporary appointments, but

time spent on workers' compensation does not count toward any time

limit. For example, a temporary employee who worked for 8 months before

being injured on the job spent 3 years on workers' compensation. If the

individual recovered to some degree, the agency could reappoint the

individual for the remaining 4 months of the temporary appointment and

then, if warranted, extend the temporary appointment for up to another

year. Reappointments of other former temporary employees, i.e., those

who were not injured on the job, may be reappointed only to the same

position or one with the same qualification requirements.

Temporary Appointments of Persons With Disabilities

Agencies may appoint qualified eligibles on a time-limited basis

under Sec. 213.3102(t) or (u), or Sec. 213.3202(k), as appropriate. The

time-limited appointment gives the individuals the opportunity to

demonstrate their potential for successful performance, with or without

reasonable accommodation. After determining that the appointees have

successfully demonstrated their abilities, the agency may remove the

time limitation on the appointment. This is important because the

requirements for conversion of employees under 213.3102(t) and (u) to

career or career-conditional appointment under Sec. 315.709 include 2

or more years of satisfactory service under nontemporary Schedule A

appointment. There is no conversion authority for individuals under

213.3202(k).

Eliminating the TAPER Authority

Our proposal would eliminate the TAPER (temporary appointments

pending establishment of a register) authority for the reasons already

discussed in connection with our proposal to eliminate the outside-the-

register mechanism for term appointments. When OPM publishes final

regulations eliminating the TAPER authority, agencies will have to

examine competitively for positions, most notably Worker-Trainee (GS-1

and WG-1 and -2), that have been filled under the TAPER authority since

1979. In commenting on a draft of this proposal, a few agencies

requested continuation of the TAPER authority for Worker Trainees on

the basis that a simpler and more flexible examining process was

required for individuals with limited education and experience. Such a

process can be devised by agencies under their delegated authority to

examine. According to the FY 95 Central Personnel Data File, agencies

made only 97 Worker Trainee appointments. Thus there no longer appears

to be a justification to continue a process solely for filling this

type of position.

Individuals serving on TAPER appointments on the date OPM publishes

final regulations eliminating the TAPER authority will not be affected.

However, as required by Sec. 315.704, TAPER employees who complete 3

years of qualifying service must have their appointments converted to

career appointments or separated. TAPER employees who complete 3 years

of qualifying service but do not meet the other conditions and

requirements for conversion, must be separated no later than 90

calendar days following the day on which they met the service

requirement for conversion.

Editorial

The proposal would also delete a section relating to the

eligibility of certain term employees for within-grade increases. The

section duplicates material already in subpart D of 5 CFR part 531, and

employees would continue to be eligible.

Regulatory Flexibility Act

I certify that these regulations will not have a significant

economic impact on a substantial number of small entities because the

regulation pertains only to Federal employees and agencies.

List of Subjects in 5 CFR Part 316

Government employees.

[[Page 47452]]

U.S. Office of Personnel Management.

James B. King,

Director.

Accordingly, OPM proposes to amend part 316 of title 5, Code of

Federal Regulations, as follows:

PART 316--TEMPORARY AND TERM EMPLOYMENT

1. The authority citation for part 316 is revised to read as

follows:

Authority: 5 U.S.C., 3301; E.O. 10577, 3 CFR, 1954-1958 Comp.,

page 218.

Subpart B--[Removed]

2. Subpart B consisting of Secs. 316.201 and 316.202 is removed and

reserved.

3. In Sec. 316.301, the existing text is designated as paragraph

(a) and revised, and paragraph (b) is added, to read as follows:

Sec. 316.301 Purpose and duration of term appointments.

(a) An agency may make a term appointment for a period of more than

1 year but not more then 4 years to positions where the need for an

employee's services is not permanent. Reasons for making a term

appointment include, but are not limited to: project work;

extraordinary workload; scheduled abolishment, reorganization, or

contracting out of the function; uncertainty of future funding; or the

need to maintain permanent positions for placement of employees who

would otherwise be displaced from other parts of the organization.

Agencies may extend appointments made for more than 1 year but less

than 4 years up to the 4-year limit in increments determined by the

agency. The vacancy announcement should state that the agency has the

option of extending a term appointment up to the 4-year limit.

(b) At the request of an agency head (or designee), OPM may approve

an exception to the time limits for term appointment when the extension

is clearly justified to enable the agency to address a need more

effectively and is consistent with applicable statutory provisions.

Send requests to the Associate Director for Employment, Office of

Personnel Management, Room 6F08, 1900 E Street NW., Washington, DC

20415.

4. Section 316.302 is revised to read as follows:

Sec. 316.302 Selection of term employees.

(a) Competitive term appointment. An agency may make a term

appointment under 5 CFR part 332 competitive procedures.

(b) Noncompetitive term appointment. An agency may give a

noncompetitive term appointment, without regard to the requirements of

parts 332 and 333, to an individual who is qualified for the position

and who is eligible for:

(1) Reinstatement under Sec. 315.401;

(2) Veterans readjustment appointment (VRA) under Sec. 307.103.

Term appointments under this section are permitted only at the grade

levels authorized for VRA appointments. Such appointment are not VRA

appointments and do not lead to conversion to career-conditional

appointment.

(3) Career-conditional appointment under Secs. 315.601, 315.604,

315.605, 315.606, 315.607, 315.608, 315.609, 315.703, or 315.711 of

this chapter;

(4) Appointment under 5 U.S.C. 3112 (veterans with compensable

service-connected disability of 30% or more). The disability must be

documented by a notice of retirement of discharge due to service-

connected disability from active military service dated at any time, or

by a notice of compensable disability rating from the Department of

Veterans Affairs, dated within the last 12 months.

(5) Career appointment under 5 U.S.C. 3304(c) (``Ramspeck

appointments'') but appointments must be effective no later than

December 18, 1997. A term appointment under this section does not

provide competitive status and does not extend or terminate an

individual's eligibility for career appointment under 5 U.S.C. 3304(c).

(6) Appointment under 31 U.S.C. 732(g) for current and former

employees of the General Accounting Office;

(7) Appointment under Pub. L. 101-474 for current and former

employees of the Administrative Office of the U.S. Courts;

(8) Reappointment on the basis of having left a term appointment

prior to serving the maximum amount of time allowed under the

appointment. Reappointment must be to a position in the same agency

appropriate for filling under term appointment and for which the

individual qualifies. Combined service under the original term

appointment and reappointment must not exceed the time limits in

Sec. 316.301.

(9) Conversion in the same agency from a current temporary

appointment when the employee is or was within reach on a certificate

of eligibles for term appointment at any time during service in the

temporary position. Within reach means that the person could have been

selected for the position under competitive hiring procedures,

including veterans' preference. The certificate must have been actually

used for term or permanent appointment. The person must have been

continuously employed in the position from the date found within reach

to the date converted to a term appointment.

(c) Term employees are eligible for an extension of their

appointment in accordance with the time limits in Sec. 316.301 even if

their eligibility for noncompetitive appointment expires or is lost

during the period they are serving under term employment.

5. In section 316.304 paragraph (a) is revised to read as follows:

Sec. 316.304 Trial period.

(a) The 1st year of service of a term employee is a trial period

regardless of the method of appointment. Prior Federal civilian service

is credited toward completion of the required trial period in the same

manner as prescribed by Sec. 315.802 of this chapter.

* * * * *

Sec. 316.305 [Removed]

6. Section 316.305 is removed.

7. Section 316.402 is revised to read as follows:

Sec. 316.402 Procedures for making temporary appointments.

(a) Competitive temporary appointments. In accordance with the time

limits in Sec. 316.401, an agency may make a temporary appointment

under 5 CFR part 332 competitive procedures or under 5 CFR part 333

``outside-the register'' procedures.

(b) Noncompetitive temporary appointments. In accordance with the

time limits in Sec. 316.401, an agency may give a noncompetitive

temporary appointment, without regard to the requirements of parts 332

and 333, to an individual who is qualified for the position and who is

eligible for:

(1) Reinstatement under Sec. 315.401;

(2) Veterans readjustment appointment under Sec. 307.103. Temporary

limited appointments under this section are permitted only at the grade

levels authorized for VRA appointments. Such appointments are not VRA

appointments and do not lead to conversion to career-conditional

appointment;

(3) Career-conditional appointment under Secs. 315.601, 315.604,

315.605, 315.606, 315.607, 315.608, 315,609, or 315.711 of this

chapter;

(4) Appointment under 5 U.S.C. 3112 (veterans with compensable

service-connected disability of 30% or more). The disability must be

documented by a notice of retirement of discharge due to service-

connected disability from active military service dated at any time, or

by a notice of compensable disability rating from the Department of

Veterans Affairs, dated within the last 12 months;

[[Page 47453]]

(5) Career appointment under 5 U.S.C. 3304(c) (``Ramspeck

appointments'') but appointments must be effective no later than

December 19, 1997. A temporary appointment under this section does not

provide competitive status and does not extend or terminate an

individual's eligibility for career appointment under 5 U.S.C. 3304(c);

(6) Appointment under 31 U.S.C. 732(g) for current and former

employees of the General Accounting Office;

(7) Appointment under Pub. L. 101-474 for current and former

employees of the Administrative Office of the U.S. Courts;

(8) Reappointment on the basis of being a former temporary employee

of the agency who was originally appointed from a certificate of

eligibles or under the provisions of part 333 of this chapter. An

agency may not reappoint a former temporary employee if the individual

has already served the maximum time allowed in Sec. 316.401 or if the

position has been filled under temporary appointment for the maximum

time allowed in Sec. 316.401. Reappointment must be to the same

position or another position appropriate for temporary appointment with

the same qualification requirements;

(9) Reappointment on the basis of being a former temporary who was

originally appointed from a certificate of eligibles or under the

provisions of part 333 of this chapter and who sustained a compensable

injury while serving on the temporary appointment. Reappointment must

be to the same position or another position appropriate for temporary

appointment with the same qualification requirements. If the

compensable injury disqualifies the former individual from performing

such a position, reappointment may be to any position for which the

individual is qualified.

(c) An individual who receives a valid temporary appointment will

be eligible for an extension in accordance with Sec. 316.401 even if

his or her eligibility for noncompetitive appointment expires or is

lost during the authorized period of temporary employment.

8. In Sec. 316.702 paragraph (d) is revised to read as follows:

Sec. 316.702 Excepted positions brought into the competitive service.

* * * * *

(d) An employee who was serving under an excepted appointment with

a definite time limit longer than 1 year may be retained under a term

appointment. The term appointment is subject to all conditions and time

limits applicable to term appointments.

Subpart H--[Removed]

9. Subpart H consisting of Sec. 316.801 is removed and reserved.

[FR Doc. 96-22904 Filed 9-6-96; 8:45 am]

BILLING CODE 6325-01-M