[Federal Register Volume 71, Number 143 (Wednesday, July 26, 2006)]
[Rules and Regulations]
[Pages 42241-42246]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-6464]



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  Federal Register / Vol. 71, No. 143 / Wednesday, July 26, 2006 / 
Rules and Regulations  

[[Page 42241]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Parts 213 and 315

RIN 3206-AK58


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

AGENCY: Office of Personnel Management.

ACTION: Final rule.

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

SUMMARY: The Office of Personnel Management (OPM) is issuing a final 
regulation regarding the excepted service appointments of persons with 
mental retardation, severe physical disabilities, and psychiatric 
disabilities. The regulation improves the Federal Government's ability 
to hire persons with these disabilities. It is designed to remove 
barriers and increase employment opportunities for persons with 
disabilities.

DATES: Effective Dates: August 25, 2006.
    Conformity date: For all new appointments under 5 CFR 213.3102(u), 
agencies may begin using the authority on August 25, 2006. Agencies 
must convert all individuals who are serving under the two authorities 
that are abolished by this regulation, 5 CFR 213.3102(t) and 
213.3102(gg), to the new appointing authority, 5 CFR 213.3102(u), by 
January 22, 2007.

FOR FURTHER INFORMATION CONTACT: Deidre Dessommes 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: On January 11, 2005, OPM issued a proposed 
regulation at 70 FR 1833 to implement changes in the three existing 
Schedule A excepted service appointing authorities for persons with 
mental retardation, severe physical disabilities, and psychiatric 
disabilities, which agencies use to hire people with disabilities. The 
proposed regulation allowed agencies to determine, on a case-by-case 
basis, whether individuals with these disabilities can receive an 
appointment based solely on medical documentation submitted by the 
applicant. The proposal also sought to consolidate the three separate 
Schedule A appointing authorities into one authority.
    We received written comments from 17 agencies, 12 public service 
organizations, 7 Federal employees, and 35 individuals. In addition, we 
held a teleconference, at the request of the Office of Management and 
Budget, on February 15, 2005, with 16 agencies to discuss specific 
operational issues agencies had regarding the proposal. While many of 
these comments generally supported the proposed changes, 9 agencies, 1 
public service organization, and 5 individuals expressed serious 
concerns over the broadened certification and determination of 
disability procedures and the potential liability agencies may incur as 
a result of these changes. After reviewing the comments, we are 
especially concerned that agency personnel lack the expertise to make 
medical disability determinations. This may result in inconsistent 
determinations across and within agencies and unanticipated inequities 
to disabled individuals; people who are not disabled could be appointed 
at the expense of those for whom these authorities were intended. After 
careful consideration of these comments, we determined that some of the 
proposed changes would result in unforeseen burdens and difficulties 
being imposed on hiring agencies as well as disabled individuals and 
have modified the final regulation accordingly.
    The final regulation modernizes the appointment processes for 
people with disabilities in several significant ways:
     We are consolidating the three separate Schedule A 
appointing authorities, 5 CFR 213.3102(t) (mental retardation), 
213.3102(u) (severe physical disabilities), and 213.3102(gg) 
(psychiatric disabilities) into one appointing authority, 5 CFR 
213.3102(u).
     We are expanding agency acceptance of proof of disability 
and an applicant's job readiness certification to include broader types 
of certifying entities. Agencies may accept proof and certification 
from a licensed medical professional (e.g., a physician or other 
medical professional duly certified by a State, the District of 
Columbia, or a U.S. territory, to practice medicine); a licensed 
vocational rehabilitation specialist (i.e., State or private); or any 
Federal agency, State agency, or agency of the District of Columbia or 
a U.S. territory that issues or provides disability benefits.
     We are clarifying the employment options for appointments 
under this authority. In cases where an applicant does not have 
certification of job readiness, an agency may appoint the individual to 
a temporary appointment to determine the applicant's readiness for 
continued employment.
     We are clarifying that agencies may also make temporary 
(for positions not expected to last more than 1 year), time-limited and 
permanent appointments under this authority.
     We are clarifying the distinction between proof of 
disability and certification of job readiness (i.e., the applicant is 
likely to succeed in performing the duties of the position for which he 
or she is applying). This will help agencies make proper appointments 
and lessen confusion expressed by commenters.

Comments

    In addition to the concerns noted in the previous paragraphs, OPM 
received comments on other aspects of the proposed regulation. We 
categorized the comments by the following areas: Consolidation of 
appointing authorities, proof of disability, certification of job 
readiness, employment options, noncompetitive conversion, and 
miscellaneous comments.

Consolidation of Appointing Authorities

    OPM received comments from 14 agencies, 2 organizations, and 3 
individuals regarding the consolidation of the three appointing 
authorities into one. Most of these comments favored streamlining these 
appointing authorities. One agency commented that the consolidation 
will cause an additional workload to agencies; another agency asked OPM 
to provide guidance on converting individuals currently serving on the 
Sec.  213.3102(t) and (gg) appointments to the Sec.  213.3102(u) 
authority. We are unclear

[[Page 42242]]

how combining the authorities will increase agency workload. We are 
providing additional guidance on executing the final regulation in the 
``Implementation'' section of this final regulation's Supplemental 
Information and will update the Guide to Processing Personnel Actions 
accordingly.
    Another agency asked whether OPM considered separating the Sec.  
213.3102(gg) authority for appointing persons with psychiatric 
disabilities from the other two because such disabilities are hidden 
and difficult to detect. We are not sure how discerning a disability 
relates to the type of appointing authority under which an agency will 
appoint an individual. However, we believe streamlining the three 
separate authorities under one appointing authority will prove to be 
less confusing procedurally for the hiring agencies as well as help in 
reducing the number of appointing authorities that currently exist.
    One agency stated the consolidation of authorities could negatively 
impact individuals currently appointed under three separate authorities 
during a reduction in force (RIF). We understand the agency's concern; 
however, depending on the actual circumstances of the restructuring, 
consolidation could have either a positive or negative impact compared 
with the current appointing authorities' impact. Agencies have 
discretion in determining which positions to abolish, as well as 
discretion to provide competing excepted service employees with certain 
assignment rights. (See 5 CFR part 351 for details.)
    One individual opposed the consolidation on the grounds that it 
will impact prior discrimination claims brought against agencies and 
therefore may have a negative economic impact on these agencies. We 
believe that consolidation will have no impact on previous 
discrimination claims. The basis for these claims will not be affected 
by the combining of three authorities into one.

Proof of Disability

    Proof of disability is required for appointments of persons with 
mental retardation, severe physical disabilities, or psychiatric 
disabilities. Previously, past guidance limited proof of disability to 
State Vocational Rehabilitation Agencies or the Department of Veterans 
Affairs (VA); agencies did not have the discretion to make 
determinations without the certification. It was also unclear what 
``certification'' referred to in the language of the appointing 
authority. The final regulation allows agencies to accept as proof of 
disability documentation from a licensed medical professional (e.g., a 
physician or other medical professional duly certified by a State, the 
District of Columbia, or a U.S. territory, to practice medicine); a 
licensed vocational rehabilitation specialist (i.e., State or private); 
or any Federal agency, State agency, or agency of the District of 
Columbia or a U.S. territory that issues or provides disability 
benefits.
    One agency and one individual asked what level of agency authority 
is responsible for making determinations of the disability and of the 
likelihood that applicants are likely to succeed in performing the 
duties of the position. In the final regulation, we decided against 
providing agencies the option of making these determinations based upon 
comments we received--in sum, that agency personnel lack the expertise 
necessary to make medical disability determinations.
    One individual asked whether a disabled person could submit the 
same documentation or certification more than once when applying for a 
position under this authority. We are not imposing any requirements 
concerning the recency of the documentation (provided the information 
is accurate) or any limitations on the number of times an applicant may 
submit such documentation.
    Another individual stated that requiring certification by 
applicants already employed on a permanent Schedule A excepted service 
appointment is repetitive, burdensome and discriminatory. The final 
regulation does not require certification of current Schedule A 
employees. To clarify this, we will address it further in the 
``Implementation'' section of this preamble.
    An agency and a public service organization commented that the 
requirement that applicants with life-long or well-established 
disabilities submit documentation places a burden on these individuals 
because their documentation may not be available. We agree in part that 
this requirement may result in a burden on some individuals. However, 
agencies must ensure that individuals seeking appointment under this 
authority meet the intent of Executive Orders 12125 and 13124. In 
addition, by expanding the certification resources, we believe agencies 
will hire more individuals which will lead to expanded job 
opportunities for persons with disabilities.

Certification of Job Readiness

    A public service organization asked that we clarify the processes 
for documenting an applicant's disability and his/her ability to 
perform the duties of the position. As stated in a previous paragraph, 
the previous guidance was confusing in regards to both certifications. 
The final regulation makes a distinction between (1) proof of an 
applicant's disability, and (2) certification of the applicant's job 
readiness. As noted in a previous paragraph, proof of disability is 
required for all appointments of persons with mental retardation, 
severe physical disabilities, or psychiatric disabilities. The final 
regulation allows agencies to accept as proof of disability 
documentation from a licensed medical professional (e.g., a physician 
or other medical professional duly certified by a State, the District 
of Columbia, or U.S. territory, to practice medicine), a licensed 
vocational rehabilitation specialist (i.e., State or private); or any 
Federal agency, State agency, or agency of the District of Columbia or 
a U.S. territory that issues or provides disability benefits.
    Certification of job readiness is a determination that a disabled 
applicant is likely to succeed in the performance of the duties of the 
position he or she is seeking. Certification of job readiness is 
required for appointments of persons with mental retardation, severe 
physical disabilities, or psychiatric disabilities. The same entities 
listed in a previous paragraph that may provide proof of disability may 
also certify an individual's job readiness. In addition, agencies may 
give individuals a temporary appointment in order to determine the 
applicant's job readiness, in lieu of job readiness certification. 
Agencies may convert individuals serving on a temporary appointment 
under Sec.  213.3102(u) to a time-limited or permanent appointment 
under Sec.  213.3102(u) at any time during the temporary appointment.
    Operational aspects of documentation will remain with the agencies. 
We believe it is the agencies' responsibility to ensure procedures are 
followed and that proper appointing authorities are used.
    One organization suggested modifying Sec.  213.3102(u)(ii), 
consistent with sections 501 and 504 of the Rehabilitation Act, to 
state that certification of whether an individual is likely to succeed 
in the performance of a job is made ``with or without reasonable 
accommodation.'' We are not adopting this suggestion because agencies 
already are required to make reasonable accommodation determinations 
for the work environment.

[[Page 42243]]

    Two agencies recommended that OPM allow instructors, teachers, 
professors and other education professionals to certify an individual's 
ability to perform the duties of the job. We are not adopting this 
suggestion on the basis that individuals in these professions may not 
be specifically trained or licensed to make employability 
determinations.
    One individual suggested that Federal agencies should require 
certification from a State Vocational Rehabilitation Agency (SVRA). We 
disagree; entities other than SVRAs (e.g., VA, private Vocational 
Rehabilitation Agencies, etc.) provide certifications of job readiness. 
In addition, in many cases SVRA certification is time-consuming and 
places an unnecessary burden on individuals seeking Federal employment.
    Three agencies and a public service organization commented that 
agencies may lack the expertise to determine whether applicants are 
likely to successfully perform the duties of a particular position. An 
agency asked what the impact would be if an agency did not agree with 
another agency's certification of job readiness. As stated in a 
previous paragraph, we decided against giving agencies the discretion 
to interpret an individual's certification of job readiness, which may 
result in inconsistent determinations across and within agencies and 
unanticipated inequities to disabled individuals. As noted in a 
previous paragraph, agencies have the discretion to decide from which 
entities they will accept certification of job readiness.
    Another agency recommends the final regulation expands on the 
criteria that agencies should use to predict probable job success. We 
believe that the hiring agency, rather than OPM, is in the best 
position to determine job success for the position it wants to fill.

Employment Options

    One agency asked that OPM clarify the temporary and other 
employment options. We agree clarification is needed. Under the new 
Sec.  213.3102(u) authority, an agency may make:

--A temporary appointment for an individual who has proof of disability 
but lacks certification for job readiness. Using some type of temporary 
appointment in lieu of certification of job readiness has long been 
available to agencies. We are continuing this practice but clarifying 
it in the context of the revised appointing authority. The individual 
may work under the Sec.  213.3102(u) appointment until the agency 
determines that the individual is able to perform the duties of the 
position, or the individual gains the certification from one of the 
entities listed in the appointing authority. Once certification is 
obtained, the agency may then appoint the individual to a time-limited 
or permanent appointment under the Sec.  213.3102(u) authority. If the 
individual does not gain certification during the appointing authority 
timeframe, or does not demonstrate satisfactorily his or her ability to 
perform the duties of the job, the agency must separate the employee. 
(See 5 CFR 213.104 for the definition and restrictions on temporary 
appointments in the excepted service.)
--A temporary appointment of an individual who provides proof of a 
disability and certification for job readiness, when the duties of the 
position do not require it to be filled on a permanent basis.
--A time-limited appointment of an individual who provides proof of 
disability and certification for job readiness, when the duties of the 
position do not require it to be filled on a permanent basis. (See 5 
CFR 213.104 for the definition of time-limited.)
--A permanent appointment of an individual who provides proof of 
disability and certification for job readiness. However, agencies are 
cautioned that the intent of Executive Orders 12125 and 13124 
concerning employment of persons with mental retardation, severe 
physical disabilities, and psychiatric disabilities is to permit these 
individuals to obtain ``civil service competitive status.'' Civil 
service competitive status is obtained through conversion to the 
competitive service rather than remaining in the excepted service.

    The noncompetitive conversion of individuals occurs after the 
individual serves at least 2 years under a time-limited or permanent 
appointment under the revised Sec.  213.3102(u) authority. Time served 
in a temporary appointment under Sec.  213.3102(u) described in a 
previous paragraph is creditable toward the 2 years required for 
conversion. Time served in a temporary appointment in the competitive 
or excepted service prior to an appointment under Sec.  213.3102(u) is 
also creditable, as long as the position is in the same line of work as 
the position filled by the time-limited or permanent Sec.  213.3102(u) 
appointment.
    One agency commented that the process requiring certification of a 
disability for a temporary appointment is overly bureaucratic and 
presents a barrier to employment of disabled individuals. We disagree 
with this comment; agencies need proof that an applicant indeed has a 
disability in order to ensure the individual is eligible for 
appointment.
    An agency asked whether these regulations impose a limitation on 
the number of times a person can be employed under a temporary 
appointment. The reference to time limitations on temporary 
appointments is found in Sec.  213.104; this final regulation makes no 
change to that section.
    An agency commented that the proposed regulation created an extra 
step to hire individuals with disabilities on a temporary appointment 
if they have already demonstrated the ability to perform the job duties 
in a satisfactory manner. The agency suggested individuals with 
disabilities should be hired on a permanent basis through which the 1st 
year of service could serve as the trial period. OPM does not agree and 
is retaining the temporary employment option for those instances when 
an agency needs to determine an individual's job readiness.
    An agency suggested that the regulation include a statement that 
applicants may be appointed to temporary appointments under this 
authority with noncompetitive conversion to a permanent excepted 
service appointment without further certification of job readiness. OPM 
agrees and revised the new, consolidated authority to clarify this 
point.
    An individual asked whether a temporary appointment is required for 
employees already in the Federal workforce who are seeking permanent 
employment under this authority. The temporary employment option is not 
intended for individuals already in the Federal workforce who have 
already demonstrated their ability to perform the duties of a 
particular job.

Noncompetitive Conversion

    Two individuals commented that the 2-year requirement for 
noncompetitive conversion to the competitive service is excessive. One 
individual suggested we shorten this time period to 1 year. Executive 
Orders 12125 and 13124 make it very clear that the 2 years is required 
for conversion to the competitive service.
    An agency suggested that conversion to a career-conditional 
appointment should be a mandatory condition of this hiring authority. 
OPM disagrees on the grounds that conversion to a career or

[[Page 42244]]

career-conditional appointment is not an employee right. Agencies 
maintain the discretion to determine whether an employee is ready for 
placement in the permanent career workforce. However, as noted in a 
previous paragraph, we caution agencies about the intent of Executive 
Orders 12125 and 13124 with regard to conversion of these individuals 
to the competitive service.
    One agency suggested that OPM specify in the final regulation that 
conversions to the competitive service can be made after the individual 
completes 2 or more years of satisfactory service under either a 
permanent or temporary appointment under this authority. We disagree. 
It is longstanding practice for appointing authorities that contain 
conversion provisions, both in the excepted and competitive services, 
to require individuals to serve on nontemporary appointments before 
conversion. We see no reason to change this policy. However, we are 
adding clarification in section 213.3102(u) concerning the applicable 
appointments (time-limited or permanent) required for conversion.

Miscellaneous Comments

    An agency and a public service organization commented that the term 
``mental retardation'' is outdated and recommended we replace it with 
``persons with a cognitive disability'' or ``developmental 
disability.'' OPM recognizes the term ``mental retardation'' is 
considered outdated, but the term is used in the authorizing Executive 
Order 12125, dated March 15, 1979. We are reluctant to change a term 
used in the Executive order.
    An individual suggested that OPM change the term ``disabilities'' 
to ``medical conditions.'' OPM is not adopting this suggestion because 
``medical conditions'' is a broader term that is undefined and general.
    Two agencies suggested that OPM establish disability program points 
of contact (POCs) to provide technical guidance to agencies and to 
update contact information on the OPM Web site. OPM agrees and intends 
to establish one or more POCs within our Human Capital Leadership and 
Merit System Accountability Division.
    Five agencies and one individual requested clarification and 
definition with respect to the following terms: ``certain conditions;'' 
``severe physical disabilities;'' and ``certification.'' OPM does not 
use the phrase ``certain conditions'' in the final regulation. We used 
it in the supplementary portion of the proposed regulation to generally 
mean instances in which a hiring agency could make determinations of 
medical disabilities or employability. We are not defining ``severe 
physical disabilities'' on the basis that doing so may limit 
flexibility and because such a definition or finite list may exclude 
future conditions from consideration under this authority. We agree the 
term ``certification'' needs clarification. For the purposes of this 
regulation, we made a distinction between a determination of disability 
and a certification that a disabled applicant can perform the duties of 
the position.
    Three public service organizations and five individuals asked 
whether individuals with specific conditions such as hearing 
impairments, kidney disease, epilepsy, learning disabilities, or 
cognitive deficits, or survivors of traumatic and/or acquired brain 
injuries would be included under this regulation. In addition, a public 
service organization commented that the regulation will allow OPM the 
opportunity to clarify the full coverage of individuals with 
disabilities. As stated in a previous paragraph, we are not providing a 
list of qualifying conditions for inclusion under this subpart. 
Further, there is no intent to specifically include or exclude any one 
particular type of disability.
    Four agencies and two individuals commented that the regulation 
should address disabled employees currently in the Federal workforce 
who are looking for upward mobility and career progression. Because the 
appointing authority is aimed at initial entry to Federal employment, 
we are not adopting this suggestion.
    Two individuals commented that this regulation should offer a 
hiring priority and/or other incentives to attract individuals with 
disabilities to the Federal Government. We are not adopting this 
suggestion because hiring priorities are established by statute or 
Executive order.
    One agency asked whether OPM will require agencies to submit annual 
reports describing their use of this authority. There is no such 
requirement in the final regulation, however, OPM captures the 
statistical data on the use of the Schedule A appointing authorities in 
the Central Personnel Data File. This will continue with the 
implementation of the new regulation. OPM monitors, on an ad hoc basis, 
the use of all Federal Government-wide appointing authorities, 
including the Schedule A authorities for the employment of individuals 
with disabilities.
    One individual commented that the regulation does not hold Federal 
agencies accountable for using this authority nor does it encourage 
them to employ persons with disabilities. By law, agencies have broad 
discretion in terms of how they fill their positions. The decision to 
hire, and under what authority they do so, rests with the agency. In 
addition, the Code of Federal Regulations is not the proper document to 
include anything that is not regulatory in nature. We do believe the 
modernized certification flexibilities provide encouragement for 
agencies to increase their use of this authority.
    An agency suggested that OPM should ensure that the number of 
persons with disabilities in the Federal workforce increases. Agencies 
are responsible for making their hiring decisions, based upon their 
resources and human capital needs. OPM's role is to provide agencies 
with the flexibilities for doing so and encourage their use.

Implementation

    Agencies must move those who are currently serving under 5 CFR 
213.3102(t) and 213.3102(gg) authorities to the new authority, 5 CFR 
213.3102(u), as soon as possible. Those individuals must serve under 
the same time limits as the appointment from which they are being 
moved. They are eligible for noncompetitive conversion as long as the 
original appointment (from which they are converting) is not a 
temporary one. A current employee's service under 5 CFR 213.3102(u) and 
213.3102(gg), regardless of whether the appointment is temporary or 
not, will count toward the 2-year period needed for noncompetitive 
conversion.
    For those individuals who are currently serving under 5 CFR 
213.3102(u), their appointments are unchanged.
    Proof of disability and certification of job readiness are not 
required for individuals already serving in appointments under Sec.  
213.3102(u). They are also not required of those who will move from 
Sec. Sec.  213.3102(t) and 213.3102(gg) to the revised Sec.  
213.3102(u) authority.
    We will update OPM's Guide to Personnel Data Standards and the 
Guide to Processing Personnel Actions to reflect the new changes. These 
Guides are available on OPM's Web site, http://www.opm.gov.

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.

[[Page 42245]]

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.
Linda M. Springer,
Director.

0
Accordingly, OPM is amending 5 CFR part 213 as follows:

PART 213--EXCEPTED SERVICE

0
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.


0
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 of Persons with Mental Retardation, Severe Physical 
Disabilities, or Psychiatric Disabilities.
    (1) Purpose. An agency may appoint, on a permanent, time-limited, 
or temporary basis, a person with mental retardation, a severe physical 
disability, or a psychiatric disability according to the provisions 
described below.
    (2) Proof of disability. (i) An agency must require proof of an 
applicant's mental retardation, severe physical disability, or 
psychiatric disability prior to making an appointment under this 
section.
    (ii) An agency may accept, as proof of an individual's mental 
retardation, severe physical disability, or psychiatric disability, 
appropriate documentation (e.g., records, statements, or other 
appropriate information) issued from a licensed medical professional 
(e.g., a physician or other medical professional duly certified by a 
State, the District of Columbia, or a U.S. territory, to practice 
medicine); a licensed vocational rehabilitation specialist (i.e., State 
or private); or any Federal agency, State agency, or an agency of the 
District of Columbia or a U.S. territory that issues or provides 
disability benefits.
    (3) Certification of job readiness. (i) An agency may accept 
certification that the individual is likely to succeed in the 
performance of the duties of the position for which he or she is 
applying. Certification of job readiness may be provided by any entity 
specified in paragraph (u)(2)(ii) of this section.
    (ii) In cases where certification has not been provided, the hiring 
agency may give the individual a temporary appointment under this 
authority to determine the individual's job readiness. The agency may 
also accept, at the agency's discretion, service under another type of 
temporary appointment in the competitive or excepted services as proof 
of job readiness.
    (4) Permanent or time-limited employment options. (i) An agency may 
make a permanent or time-limited appointment based upon:
    (A) Proof of disability; and
    (B) A certification of job readiness, or demonstration of job 
readiness through a temporary appointment.
    (5) Temporary employment options. An agency may make a temporary 
appointment based upon proof of disability specified in paragraph 
(u)(2) of this section when:
    (i) It is necessary to observe the applicant on the job to 
determine whether the applicant is able or ready to perform the duties 
of the position. When an agency uses this option to determine an 
individual's job readiness, the hiring agency may convert the 
individual to a permanent appointment whenever the agency determines 
the individual is able to perform the duties of the position; or
    (ii) The individual has a certification of job readiness and the 
work is of a temporary nature.
    (6) Noncompetitive conversion to the competitive service. (i) An 
agency may noncompetitively convert to the competitive service an 
employee who has completed 2 years of satisfactory service in a 
nontemporary appointment 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.
    (ii) An agency may credit time spent on a temporary appointment 
specified in paragraph (u)(5) of this section towards the 2-year 
requirement.
* * * * *

PART 315--CAREER AND CAREER-CONDITIONAL EMPLOYMENT

0
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

0
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;
* * * * *

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

0
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 appointment under 
Sec.  213.3102(u);
    (2) Is recommended for such conversion by his or her supervisor;
    (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:

[[Page 42246]]

    (1) A career-conditional employee, except as provided in paragraph 
(b)(2) of this section; or
    (2) A career employee if he or she has completed 3 years of 
substantially continuous service in a temporary 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. 06-6464 Filed 7-25-06; 8:45 am]
BILLING CODE 6325-39-P