[Federal Register Volume 63, Number 221 (Tuesday, November 17, 1998)]
[Rules and Regulations]
[Pages 63781-63784]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-30613]



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 Rules and Regulations
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  Federal Register / Vol. 63, No. 221 / Tuesday, November 17, 1998 / 
Rules and Regulations  

[[Page 63781]]


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OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 316

RIN 3206-AH47


Temporary and Term Employment

AGENCY: Office of Personnel Management.

ACTION: Final regulation.

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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]
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