[Federal Register Volume 61, Number 175 (Monday, September 9, 1996)]
[Proposed Rules]
[Pages 47450-47453]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-22904]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
 ========================================================================
 

  Federal Register / Vol. 61, No. 175 / Monday, September 9, 1996 / 
Proposed Rules  

[[Page 47450]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 316

RIN 3206-AH47


Temporary and Term Employment

AGENCY: Office of Personnel Management.

ACTION: Proposed regulations.

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

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