# Temporary and Term Employment

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URL: https://www.frixlaw.com/law-library/documents/fr%3A96-22904

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** September 9, 1996
- **Citation:** 61 FR 47450

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A96-22904. Public record. Not legal advice.