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[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]

 

========================================================================

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.

 

========================================================================

 

 

 

[[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.

 

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

 

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©.

© 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]

 

BILLING CODE 6325-39-P

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