[Federal Register Volume 70, Number 7 (Tuesday, January 11, 2005)]
[Proposed Rules]
[Pages 1833-1835]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-456]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
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 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. 70, No. 7 / Tuesday, January 11, 2005 / 
Proposed Rules  

[[Page 1833]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Parts 213 and 315

RIN 3206-AK58


Excepted Service--Appointment for Persons With Disabilities and 
Career and Career-Conditional Employment

AGENCY: Office of Personnel Management.

ACTION: Proposed rule.

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SUMMARY: The Office of Personnel Management (OPM) is proposing changes 
to existing regulations regarding the excepted appointments of persons 
with mental retardation, severe physical, and psychiatric disabilities. 
These changes will provide agencies the authority to determine, on a 
case-by-case basis, whether these individuals can receive an excepted 
appointment based solely on medical documentation submitted by the 
applicant. We also propose to consolidate three excepted appointing 
authorities for persons with the above disabilities into one authority.

DATES: We will consider comments received on or before March 14, 2005.

ADDRESSES: You may submit comments, identified by RIN number, by any of 
the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     E-mail: [email protected]. Include ``RIN 3206-AK58'' in the 
subject line of the message.
     Fax: (202) 606-2329.
     Mail: Mark Doboga, Deputy Associate Director for Talent 
and Capacity Policy, U.S. Office of Personnel Management, Room 6551, 
1900 E Street, NW., Washington, DC 20415-9700.
     Hand Delivery/Courier: OPM, Room 6551, 1900 E Street, NW., 
Washington, DC 20415.

FOR FURTHER INFORMATION CONTACT: Larry Lorenz by telephone on (202) 
606-0960, by fax on (202) 606-2329, by TDD on (202) 418-3134, or by e-
mail at [email protected].

SUPPLEMENTARY INFORMATION: In February 2001, President George W. Bush 
introduced the New Freedom Initiative (http://www.whitehouse.gov/news/freedominitiative/freedominitiative.html) to eliminate ``the barriers 
to equality that face many of the 54 million Americans with 
disabilities.'' In so doing, the President stated that persons with 
disabilities ``should have every freedom to pursue careers, integrate 
into the workforce, and participate as full members in the economic 
marketplace.''
    To further the objectives of the New Freedom Initiative, OPM 
reviewed the regulations governing the appointment of persons with 
disabilities to positions in the Federal Government. At present, those 
regulations permit agencies to make expedited Schedule A ``excepted'' 
appointments to persons with disabilities if they have been certified 
as having mental retardation (as that term is used in Executive Order 
12125 dated March 15, 1979), or severe physical or psychiatric 
disability. However, the certification process is onerous and 
complicated, involving review by State and/or Federal agencies even 
where the disability has been clearly diagnosed by a licensed medical 
authority. After careful consideration of that certification 
requirement, we propose changing the current regulations to simplify 
the disability determination process in certain cases, consolidate the 
three existing Schedule A appointing authorities for persons with 
mental retardation, severe physical, or psychiatric disabilities, and 
thereby streamline the Federal hiring process for these deserving 
individuals.
    OPM currently provides agencies three separate appointing 
authorities for individuals with mental retardation, severe physical, 
and psychiatric disabilities. The provisions for each authority were 
authorized under Executive Order (E.O.) 12125, as amended by E.O. 
13124, and vary only slightly from one another. The proposed rules 
standardize and consolidate these provisions into one streamlined 
appointing authority.
    In addition, the current regulations specify that, for purposes of 
these appointments, the certification that a person with a severe 
physical disability or a person with a psychiatric disability is 
disabled and likely to successfully perform duties of the job for which 
he or she is applying (including Federal jobs) may be provided only by 
the Department of Veterans Affairs (VA) or an applicable State 
Vocational Rehabilitation Agency (SVRA). Similarly, only SVRAs may 
provide the required certification for a person with mental 
retardation. Thus, an individual with a disability determination from a 
Federal agency other than the VA may not use that documentation for 
purposes of obtaining eligibility for a Schedule A excepted appointment 
for a Federal job. The proposed rulemaking seeks to remedy this 
situation by delegating this certification authority to other Federal 
agencies under certain conditions.
    OPM believes the proposed regulations will facilitate the Federal 
Government's ability to hire persons with disabilities, in furtherance 
of the President's New Freedom Initiative, introduced in February 2001, 
which was designed to increase employment opportunities for persons 
with disabilities. We seek comments on the proposed changes from all 
interested parties, but especially from agencies on their ability to 
determine the eligibility of applicants with disabilities for 
appointment under Schedule A and evaluating these applicants' 
likelihood of success in a specific job without certification from a 
state or Veterans Administration vocational rehabilitation counselor.

Proposed Amendments

    Under these proposed regulations, one consolidated authority would 
replace the following:
    Schedule A authority Sec.  213.3102(t) for positions when filled by 
people with mental retardation; Schedule A authority Sec.  213.3102(u) 
for positions when filled by people with severe physical disabilities; 
and
    Schedule A authority Sec.  213.3102(gg) for positions when filled 
by people with psychiatric disabilities.
    Using the new program, agencies will appoint individuals under 
Sec.  213.3102(u). The new Schedule A authority contains updated 
certification procedures, a temporary employment option, and 
requirements for non-competitive conversion to the competitive service.

[[Page 1834]]

Certification Procedures

    This proposed rule will allow Federal agencies to certify, then 
immediately hire, disabled applicants who are likely to succeed as 
Federal employees.
    The proposed certification procedures authorize any Federal agency 
to certify, on a case-by-case basis, that a particular applicant has 
provided sufficient evidence of mental retardation, severe physical, or 
psychiatric disability; such evidence may be certification from the 
Social Security Administration (SSA) or a licensed physician. In 
addition, the proposed procedures authorize the agency to determine 
whether a disabled applicant is likely to successfully perform the job 
for which he or she is applying. By authorizing agencies to make such 
certifications on a case-by-case basis, the proposed regulations will 
eliminate an unnecessary burden on disabled job applicants as well as 
potentially duplicative certification procedures. Agencies will retain 
the option of requiring VA or SVRA certification of a disabled 
applicant where the agencies are unable to make a determination based 
on documentation submitted by the applicant.
    To determine whether to certify an individual, Federal agencies 
would be required to review medical documentation presented by the job 
applicant, such as a physician's statement or disability documentation 
from the SSA and/or an appropriate State Disability Determination 
Services agency (if the severe physical disability is not obvious), and 
all other relevant evidence needed to determine if the applicant is 
likely to succeed in the job (e.g., degrees from accredited colleges, 
work experience, tests, etc.).

Temporary Employment Option

    The proposed regulations will retain a temporary employment option 
as an alternative to the certification procedures described above. 
Under this option, agencies may offer a Schedule A excepted 
appointment, without further certification, to people with disabilities 
who have already demonstrated their ability to perform duties 
satisfactorily under a temporary appointment.

Requirements for Non-Competitive Conversion

    For a person with mental retardation, severe physical, or 
psychiatric disability, the proposed regulations also provide agencies 
the discretionary authority to convert such a person non-competitively 
to the competitive service, upon 2 years of satisfactory service in a 
Schedule A excepted appointment made under the proposed regulations.

Appointments

    The proposed rule contains only one authority, 5 CFR 213.3102(u), 
for appointments of persons with disabilities. When these regulations 
become effective, agencies will convert the appointments of individuals 
currently serving on appointments under the superseded authorities to 5 
CFR 213.3102(u). OPM's Central Personnel Data File will continue to 
retain the legal authority code required by the Guide to Processing 
Personnel Actions for analysis by disability type.

Regulatory Flexibility Act

    I certify that this regulation will not have a significant economic 
impact on a substantial number of small entities because it affects 
only certain potential applicants and Federal employees.

Executive Order 12866, Regulatory Review

    This rule has been reviewed by the Office of Management and Budget 
in accordance with Executive Order 12866.

List of Subjects in 5 CFR Parts 213 and 315

    Government employees, Reporting and recordkeeping requirements.

Office of Personnel Management.
Kay Coles James,
Director.
    Accordingly, OPM proposes to amend 5 CFR parts 213 and 315 as 
follows:

PART 213--EXCEPTED SERVICE

    1. The authority citation for part 213 is revised to read as 
follows:


    Authority: 5 U.S.C. 3161, 3301 and 3302; E.O. 10577, 3 CFR 1954-
1958 Comp., p. 218.
    Sec. 213.101 also issued under 5 U.S.C. 2103.
    Sec. 213.3102 also issued under 5 U.S.C. 3301, 3302, 3307, 
8337(h), and 8456; E.O. 13318, 47 FR 22931, 3 CFR 1982 Comp., p. 
185; 38 U.S.C. 4301 et seq.; Pub. L. 105-339, 112 Stat 3182-83; and 
E.O. 13162.

    2. Amend Sec.  213.3102 by removing and reserving paragraphs (t) 
and (gg), and by revising paragraph (u) to read as follows:


Sec.  213.3102  Entire executive civil service.

* * * * *
    (u) Appointment for Persons With Disabilities. (1) Purpose. An 
agency may appoint a person with mental retardation, a person with a 
severe physical disability, or a person with a psychiatric 
disability who, on the basis of authoritative medical and other 
appropriate documentation submitted by or on his or her behalf, has 
been certified by the appointing agency, another Federal agency, or 
a State Vocational Rehabilitation Agency (SVRA), as having from one 
or more of those conditions; and who has:
    (i) Demonstrated his or her ability to perform satisfactorily 
the duties of the position for which he or she is applying by 
serving previously on a temporary appointment; or
    (ii) Been certified by the appointing agency, another Federal 
agency, or a State Vocational Rehabilitation Agency (SVRA) as likely 
to succeed in the performance of the duties of the position for 
which he or she is applying.
    (2) Non-competitive conversion. An agency may non-competitively 
convert to the competitive service an employee who has completed 2 
years of satisfactory service under this authority in accordance 
with the provisions of Executive Order 12125 as amended by Executive 
Order 13124 and Sec.  315.709 of this chapter.
* * * * *

PART 315--CAREER AND CAREER-CONDITIONAL EMPLOYMENT

    3. The authority citation for part 315 is revised to read as 
follows:

    Authority: 5 U.S.C. 1302, 3301, and 3302; E.O. 10577. 3 CFR, 
1954-1958 Comp. p. 218, unless otherwise noted; and E.O. 13162. 
Secs. 315.601 and 315.609 also issued under 22 U.S.C. 3651 and 3652. 
Secs. 315.602 and 315.604 also issued under 5 U.S.C. 1104. Sec. 
315.603 also issued under 5 U.S.C. 8151. Sec. 315.605 also issued 
under E.O. 12034, 3 CFR, 1978 Comp. p. 111. Sec. 315.606 also issued 
under E.O. 11219, 3 CFR, 1964-1965 Comp. p. 303. Sec. 315.607 also 
issued under 22 U.S.C. 2506. Sec. 315.608 also issued under E.O. 
12721, 3 CFR, 1990 Comp. p. 293. Sec. 315.610 also issued under 5 
U.S.C. 3304(d). Sec. 315.611 also issued under Section 511, Pub. L. 
106-117, 113 Stat. 1575-76. Sec. 315.708 also issued under E.O. 
13318. Sec. 315.710 also issued under E.O. 12596, 3 CFR, 1987, Comp. 
p. 229. Subpart I also issued under 5 U.S.C. 3321, E.O. 12107, 3 
CFR, 1978 Comp. p. 264.

Subpart B--The Career-Conditional Employment System

    4. In Sec.  315.201 revise paragraph (b)(1)(xii) to read as 
follows:


Sec.  315.201  Service requirement for career tenure.

* * * * *
    (b) * * *
    (1) * * *
    (xii) The date of nontemporary appointment under Schedule A, Sec.  
213.3102(u) of this chapter, of a person with mental retardation, a 
severe physical disability, or a psychiatric disability, provided the 
employee's appointment is converted to a career or career-conditional 
appointment under Sec.  315.709;
* * * * *

[[Page 1835]]

Subpart G--Conversion to Career or Career-Conditional Employment 
From Other Types of Employment

    5. Revise Sec.  315.709 to read as follows:


Sec.  315.709  Appointment for Persons With Disabilities.

    (a) Coverage. An employee appointed under Sec.  213.3102(u) of 
this chapter may have his or her appointment converted to a career 
or career-conditional appointment when he or she:
    (1) Completes 2 or more years of satisfactory service, without a 
break of more than 30 days, under a nontemporary Schedule A 
appointment;
    (2) Is recommended for such conversion by his or her 
supervisors;
    (3) Meets all requirements and conditions governing career and 
career-conditional appointment except those requirements concerning 
competitive selection from a register and medical qualifications; 
and
    (4) Is converted without a break in service of one workday.
    (b) Tenure on conversion. An employee converted under paragraph 
(a) of this section becomes:
    (1) A career-conditional employee, except as provided in 
paragraph (b)(2) of this section;
    (2) A career employee if he or she has completed 3 years of 
substantially continuous service in a nontemporary appointment under 
Sec.  213.3102(u) of this chapter, or has otherwise completed the 
service requirement for career tenure, or is excepted from it by 
Sec.  315.201(c).
    (c) Acquisition of competitive status. A person whose employment 
is converted to career or career-conditional employment under this 
section acquires a competitive status automatically on conversion.

[FR Doc. 05-456 Filed 1-10-05; 8:45 am]
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