Temporary and Term Employment

OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 316

RIN 3206-AH47

Temporary and Term Employment

AGENCY: Office of Personnel Management.

ACTION: Final regulation.

-----------------------------------------------------------------------

SUMMARY: As part of continuing efforts to streamline the appointing

system, the Office of Personnel Management (OPM) is issuing final

regulations on nonpermanent employment. These regulations eliminate

``outside-the-register authority'' for term appointments; permit OPM 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 regulations also add several 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 also clarifies 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 regulations permit the reappointment of injured non-permanent

employees to any position for which qualified.

EFFECTIVE DATE: December 17, 1998.

FOR FURTHER INFORMATION CONTACT: Diane Tyrrell or Michael Mahoney on

202-606-0830, FAX 202-606-2329, or TDD 202-606-0023.

SUPPLEMENTARY INFORMATION: On September 9, 1996 (61 FR 47450), OPM

published proposed regulations and received comments from four Federal

agency headquarters, three agency components, and three employee

organizations. Following is a summary of each regulatory provision and

the relevant comments.

Eliminating the Outside-the-Register Hiring Mechanism for Term

Appointments

Two agency headquarters objected to the elimination of outside-the-

register procedures for term appointments on the basis that agencies

should have the flexibility to select from ``immediately available and

qualified candidates * * * using the latest computer technology.'' We

have not adopted these comments.

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.

Now, however, OPM has delegated full examining authority to agencies.

Agencies can announce individual positions as needed and can tailor

examining procedures as appropriate. Further, since term appointees may

serve for long periods of time and have benefits similar to those

enjoyed by permanent employees, it is appropriate that term and

permanent employees be appointed in the same manner. We have,

therefore, adopted the proposal to eliminate outside-the-register

procedures for term appointment.

Extending Term Appointments

We proposed to permit OPM to extend term appointments beyond the 4-

year limit without the need for a variation to the regulation under

Civil Service Rule 5.1 as currently required. In response, three agency

headquarters and two employee organizations recommended OPM delegate

the extension authority to agencies. One agency field component

recommended that the regulations authorize agencies to make term

appointments for up to 5-7 years through the end of 2001, or permit the

noncompetitive reappointment of individuals who have served the maximum

time for term appointment in order to complete the work for which they

were hired. A third employee organization objected to any expansion of

the term authority on the basis that term appointments are not

specifically authorized by law.

After considering these dissimilar comments, we believe our

original proposal represents a reasonable compromise. Therefore, the

final regulations permit OPM to extend term appointments beyond the 4-

year limit. The purpose of term appointments remains the same as

defined in 5 CFR 316.301; such appointments are appropriate when the

need for an employee's services is not permanent, e.g., for project

work, extraordinary workload, scheduled abolishment, reorganization,

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

need to maintain permanent positions for placement of permanent

employees who would otherwise be displaced.

Agencies should determine whether a permanent appointment may be

more appropriate if there is a need for continuing the term appointment

for an extended period of time. Overly long extensions or consecutive

term appointments reflect a permanent need and, therefore, must be

staffed accordingly. When seeking OPM approval to extend term

appointments, agencies must document the reasons for the continued need

of the individual. The requirement to make such requests using the

variation process is no longer necessary.

We are also adopting the proposal 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.

Trial Period for Term Appointment

There were no comments on our proposal to require crediting prior

service toward the trial period required for term appointment in the

same way that prior service is credited for the probationary period in

5 CFR 315.802, i.e., same agency, same line of work, and no more than a

single break in service not exceeding 30 days. The final regulations

have adopted the proposal with no changes.

[[Page 63782]]

Crediting Excepted Service Toward Time Limit for Term Appointment

One agency commented on our proposal to allow former excepted

service employees whose positions were brought into the competitive

service when OPM revoked an excepted appointing authority to serve up

to the full 4-year period for term appointments rather than have the

amount of their prior time-limited excepted service subtracted from the

maximum time limit for term appointment. The agency suggested that the

regulatory language itself contain a fuller explanation. We have

adopted this suggestion in 5 CFR 316.702.

Categories Eligible for Noncompetitive Term and Temporary

Appointments

One agency headquarters commented on the proposal to add four

categories of individuals eligible for noncompetitive term and

temporary appointments based on their eligibility for permanent

appointment under various authorities. The agency recommended the final

regulations permit noncompetitive term appointments of mentally

retarded and disabled employees who have successfully performed while

employed under excepted service appointments, 5 CFR 213.3102 (t) and

(u). We have not adopted this suggestion. Individuals who serve under

these two excepted service authorities are eligible for conversion to

career or career-conditional appointments under 5 CFR 315.709 if there

is no break in service between their excepted service and the career or

career-conditional appointment. A term appointment would constitute a

break in service for this purpose and would prevent conversion. Also,

since an individual can serve indefinitely under the (t) and (u)

authorities unless the appointment is made with a specific time

limitation, a term appointment in the competitive service would be less

advantageous to the employee since it has a fixed ending date.

Selecting Term Employees for Permanent Positions

Although no specific regulatory language was proposed, two agencies

questioned our interpretation of Civil Service Rule 3.1 and parallel

regulation 5 CFR 315.703. One agency component recommended a new

Executive Order (E.O.) to change Civil Service Rule 3.1 so that term

employees could more easily be converted to permanent appointments. In

our proposal we pointed out that conversion is possible only when all

the conditions of 5 CFR 315.703 are met, including the requirement that

the term employee has been within reach for permanent appointment. We

explained that in this context, within reach means that the term

employee could have been selected for a permanent position that was

actually announced and filled. We explained that it was 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.

In commenting on our explanation, the two agencies suggested that

when positions are announced as ``term, may become permanent,'' the

conversion from term to permanent is made based on a prior competitive

selection from a register which was used to make appointments

conferring competitive status. According to the agencies' reasoning,

the conversion from term to permanent would thus be based on prior

competition and would, therefore, be in keeping with merit system

requirements since all applicants knew of the possible conversion and

had a fair opportunity to apply. These agencies see the term

appointment as an interim step necessary because of funding

constraints.

OPM's view is that unless permanent appointments were actually made

from the register referred to above, it cannot be said that the

register was used to make appointments conferring competitive status.

An amendment to E.O. 10577 or enactment of a Federal statute would be

necessary before we could issue regulations authorizing individuals to

be converted from term to permanent on the basis of a vacancy

announcement that said an individual selected for a term appointment

might later be converted to permanent appointment.

Two employee organizations recommended OPM seek legislative change

to permit temporary and term employees to compete for permanent

positions under agency merit promotion procedures. This is a matter

outside the scope of the regulations in 5 CFR part 316.

Temporary Employees Injured on the Job

Two agencies commented (one by telephone) on the proposed provision

to permit agencies to noncompetitively reappoint 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.

(Other former temporary employees who were not injured on the job may

be noncompetitively reappointed only to their original positions or one

with the same qualification requirements.) For all reappointments, 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.

One agency recommended that we allow agencies to reappoint former

temporary employees who are injured on the job for a minimum of 120

days, even if they had less time remaining under their original

temporary appointment. This 120 days would not count toward time

remaining under the original temporary appointment. The 120-day period

would provide the necessary time for the Department of Labor to

calculate a ``loss of wage earning capacity.'' Without such a

determination, individuals would return to the long term workers'

compensation rolls after expiration of the temporary appointment, and

Federal agencies would not have reduced their costs for workers'

compensation.

On the basis of this comment, we have changed the regulatory

provision to permit reappointment of former temporary employees injured

on the job for a minimum of 120 days. See 5 CFR 316.402.

Eliminating the TAPER Authority

In response to the Governmentwide need in connection with the

President's initiative to provide opportunity for welfare recipients to

enter the workforce, OPM will not eliminate the TAPER (temporary

appointment pending establishment of a register) authority at this

time. We recognize the need to retain a more simple and flexible

examining process required by agencies when filling Worker-Trainee (GS-

1 and WG-1 and -2) positions with applicants with limited education and

experience. This appointing authority and examining process will

continue to be monitored and evaluated to determine the necessity for

its continuation.

Editorial

One agency objected to our proposed deletion of 5 CFR 316.305

relating to the eligibility of certain term employees for within-grade

increases. Because the section duplicates material already included in

5 CFR part 531, subpart D, we have not adopted the agency's suggestion.

We have made editorial changes in 5 CFR 316.201 of the regulations

to clarify

[[Page 63783]]

that Worker-Trainee promotions are authorized under these regulations

when they are consistent with 5 CFR 330.501; in 5 CFR 316.403(b)(1) of

the regulations to correct a reference to retired disabled veterans;

and in 5 CFR 316.701(b)(1) and 5 CFR 316.702(b)(1) of the regulations,

which permit agencies to retain employees whose public or private

enterprise or excepted positions are brought into the competitive

service. This language makes it clear that if they are retained in

continuing positions, they are given status quo appointments. We have

also removed reference to temporary and term appointments made based on

eligibility under 5 U.S.C. 3304(c) (``Ramspeck appointments'') due to

the repeal of the Ramspeck Act.

Other

One agency commented that agencies be allowed to make excepted

service appointments on a term basis. Excepted appointments are not

covered by 5 CFR part 316. However, unless the specific excepted

service authority provides otherwise, agencies may make an excepted

appointment on a time limited basis for more than 1 year. Such excepted

appointments are comparable to term appointments in the competitive

service, but there is no maximum time limit unless specified by a

particular excepted service authority. (Excepted appointments not-to-

exceed 1 year are defined in 5 CFR 213.104(a)(1) as temporary and are

subject to the maximum time limits 5 CFR 213.104(b)(1).

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.

Office of Personnel Management.

Janice R. Lachance,

Director.

Accordingly, OPM is amending 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, 3302; E.O. 10577, 3 CFR, 1954-1958

Comp., p. 218.

2. In Sec. 316.201, paragraph (b) is revised to read as follows:

Sec. 316.201 Purpose and duration.

* * * * *

(b) Specific authority for Worker-Trainee positions. Agencies may

make TAPER appointments to positions at GS-1, WG-1, and WG-2 and may

reassign or promote the appointees to other positions through grade GS-

3, WG-4, or equivalent grades in the Federal Wage System consistent

with Sec. 330.501 of this chapter. Agencies are authorized to reassign

or promote Worker-Trainees under this authority.

3. Section 316.301 is revised to read as follows:

Sec. 316.301 Purpose and duration.

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

1 year but not more than 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,

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) OPM may authorize exceptions beyond the 4-year limit when the

extension is clearly justified and is consistent with applicable

statutory provisions. Requests to make and/or extend appointments

beyond the 4-year limit must be initiated by the employing office and

sent to the appropriate OPM service center.

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 of this chapter, to an individual who is qualified

for the position and who is eligible for:

(1) Reinstatement under Sec. 315.401 of this chapter;

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

this chapter. Term appointments under this section are permitted only

at the grade levels authorized for VRA appointments. Such appointments

are competitive service appointments not excepted VRA appointments and

do not lead to conversion to career-conditional appointment;

(3) Career or 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) Appointment under 31 U.S.C. 732(g) for current and former

employees of the General Accounting Office;

(6) Appointment under 28 U.S.C. 602 for current and former

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

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

prior to serving the 4-year 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 4-year limit; or

(8) 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 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 Sec. 316.304, paragraph (a) is revised to read as follows:

Sec. 316.304 Trial period.

(a) The first 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

[[Page 63784]]

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 when there are insufficient

eligibles on the appropriate register.

(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 of this chapter, to an individual who is qualified for the

position and who is eligible for:

(1) Reinstatement under Sec. 315.401 of this chapter;

(2) Veterans readjustment appointment under Sec. 307.103 of this

chapter. 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;

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

employees of the General Accounting Office;

(6) Appointment under 28 U.S.C. 602 for current and former

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

(7) 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;

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

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. Reappointment must be

for a minimum of 120 days.

(c) Extension of temporary appointments. 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. 316.403, paragraph (b)(1) is revised to read as follows:

Sec. 316.403 Designation of provisional appointments.

* * * * *

(b)* * *

(1) Noncompetitive temporary appointments of disabled veterans

under Sec. 316.402(b)(5), when the appointments are intended to afford

eligibility for conversion in accordance with Sec. 315.707 of this

chapter and section 3112 of title 5, United States Code;

* * * * *

9. In Sec. 316.701, paragraph (b)(1) is revised to read as follows:

Sec. 316.701 Public or private enterprise taken over by Government.

* * * * *

(b)* * *

(1) When an agency retains an employee under paragraph (a) of this

section in a position which it determines to be a continuing one, the

agency gives the employee a status quo appointment and shall decide on

a timely basis whether it will convert that individual's employment to

career or career-conditional under Sec. 315.701 of this chapter.

* * * * *

10. In Sec. 316.702, paragraphs (b)(1) and (d) are revised to read

as follows:

Sec. 316.702 Excepted positions brought into the competitive service.

* * * * *

(b)(1) When an agency retains an employee under paragraph (a) of

this section who was serving in an excepted position under an

indefinite appointment or an appointment without time limit, the agency

gives the employee a status quo appointment and may convert that

employee's appointment to career or career-conditional under

Sec. 315.701 of this chapter.

* * * * *

(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. Service under excepted

appointment does not count against the maximum time limit for term

appointment in the competitive service.

[FR Doc. 98-30613 Filed 11-16-98; 8:45 am]

BILLING CODE 6325-01-P