[Federal Register: January 11, 2005 (Volume 70, Number 7)]
[Proposed Rules]
[Page 1833-1835]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11ja05-13]
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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.
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[[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: employ@opm.gov. 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 employ@opm.gov.
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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