Excepted Service-Appointment of Persons With Disabilities and Career and Career-Conditional Employment, 42241-42246 [06-6464]
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42241
Rules and Regulations
Federal Register
Vol. 71, No. 143
Wednesday, July 26, 2006
This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by
the Superintendent of Documents. Prices of
new books are listed in the first FEDERAL
REGISTER issue of each week.
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
Office of Personnel
Management.
ACTION: Final rule.
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AGENCY:
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 deidre.dessommes@opm.gov.
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
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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
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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), timelimited 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 § 213.3102(t)
and (gg) appointments to the
§ 213.3102(u) authority. We are unclear
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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 § 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
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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 lifelong 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
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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 § 213.3102(u) to a time-limited or
permanent appointment under
§ 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
§ 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.
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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 § 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 § 213.3102(u)
appointment until the agency
determines that the individual is able
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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
§ 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 timelimited.)
—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 timelimited or permanent appointment
under the revised § 213.3102(u)
authority. Time served in a temporary
appointment under § 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 § 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 § 213.3102(u) appointment.
One agency commented that the
process requiring certification of a
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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 § 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
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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
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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
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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 § 213.3102(u). They
are also not required of those who will
move from §§ 213.3102(t) and
213.3102(gg) to the revised
§ 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,
https://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.
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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.
Accordingly, OPM is amending 5 CFR
part 213 as follows:
I
PART 213—EXCEPTED SERVICE
1. The authority citation for part 213
is revised to read as follows:
I
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 § 213.3102 by removing and
reserving paragraphs (t) and (gg), and by
revising paragraph (u) to read as
follows:
I
§ 213.3102
Entire executive civil service.
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*
*
*
*
*
(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
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16:29 Jul 25, 2006
Jkt 208001
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 § 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 CAREERCONDITIONAL EMPLOYMENT
3. The authority citation for part 315
is revised to read as follows:
I
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
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Frm 00005
Fmt 4700
Sfmt 4700
42245
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 § 315.201 revise paragraph
(b)(1)(xii) to read as follows:
I
§ 315.201
tenure.
Service requirement for career
*
*
*
*
*
(b) * * *
(1) * * *
(xii) The date of nontemporary
appointment under Schedule A,
§ 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
§ 315.709;
*
*
*
*
*
Subpart G—Conversion to Career or
Career-Conditional Employment From
Other Types of Employment
I
5. Revise § 315.709 to read as follows:
§ 315.709 Appointment for Persons With
Disabilities.
(a) Coverage. An employee appointed
under § 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
§ 213.3102(u);
(2) Is recommended for such
conversion by his or her supervisor;
(3) Meets all requirements and
conditions governing career and careerconditional 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:
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Federal Register / Vol. 71, No. 143 / Wednesday, July 26, 2006 / Rules and Regulations
(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 § 213.3102(u) of this
chapter, or has otherwise completed the
service requirement for career tenure, or
is excepted from it by § 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
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection
Service
7 CFR Part 301
[Docket No. APHIS–2006–0080]
Imported Fire Ant; Addition of
Counties in Arkansas and Tennessee
to the List of Quarantined Areas
Animal and Plant Health
Inspection Service, USDA.
ACTION: Interim rule and request for
comments.
rwilkins on PROD1PC63 with RULES_1
AGENCY:
SUMMARY: We are amending the
imported fire ant regulations by
designating as quarantined areas all of 2
counties in Arkansas and all or portions
of 21 counties in Tennessee. As a result
of this action, the interstate movement
of regulated articles from those areas
will be restricted. This action is
necessary to prevent the artificial spread
of imported fire ant to noninfested areas
of the United States.
DATES: This interim rule is effective July
26, 2006. We will consider all
comments that we receive on or before
September 25, 2006.
ADDRESSES: You may submit comments
by either of the following methods:
• Federal eRulemaking Portal: Go to
https://www.regulations.gov and, in the
lower ‘‘Search Regulations and Federal
Actions’’ box, select ‘‘Animal and Plant
Health Inspection Service’’ from the
agency drop-down menu, then click on
‘‘Submit.’’ In the Docket ID column,
select APHIS–2006–0080 to submit or
view public comments and to view
supporting and related materials
available electronically. Information on
using Regulations.gov, including
instructions for accessing documents,
submitting comments, and viewing the
VerDate Aug<31>2005
16:29 Jul 25, 2006
Jkt 208001
docket after the close of the comment
period, is available through the site’s
‘‘User Tips’’ link.
• Postal Mail/Commercial Delivery:
Please send four copies of your
comment (an original and three copies)
to Docket No. APHIS–2006–0080,
Regulatory Analysis and Development,
PPD, APHIS, Station 3A–03.8, 4700
River Road Unit 118, Riverdale, MD
20737–1238. Please state that your
comment refers to Docket No. APHIS–
2006–0080.
Reading Room: You may read any
comments that we receive on this
docket in our reading room. The reading
room is located in room 1141 of the
USDA South Building, 14th Street and
Independence Avenue SW.,
Washington, DC. Normal reading room
hours are 8 a.m. to 4:30 p.m., Monday
through Friday, except holidays. To be
sure someone is there to help you,
please call (202) 690–2817 before
coming.
Other Information: Additional
information about APHIS and its
programs is available on the Internet at
https://www.aphis.usda.gov.
FOR FURTHER INFORMATION CONTACT: Mr.
Charles L. Brown, Imported Fire Ant
Quarantine Program Manager, Pest
Detection and Management Programs,
PPQ, APHIS, 4700 River Road Unit 134,
Riverdale, MD 20737–1236; (301) 734–
4838.
SUPPLEMENTARY INFORMATION:
Background
The imported fire ant regulations
(contained in 7 CFR 301.81 through
301.81–10 and referred to below as the
regulations) quarantine infested States
or infested areas within States and
restrict the interstate movement of
regulated articles to prevent the
artificial spread of the imported fire ant.
The imported fire ant (Solenopsis
invicta Buren, Solenopsis richteri Forel,
and hybrids of these species) is an
aggressive, stinging insect that, in large
numbers, can seriously injure and even
kill livestock, pets, and humans. The
imported fire ant, which is not native to
the United States, feeds on crops and
builds large, hard mounds that damage
farm and field machinery. The
regulations are intended to prevent the
imported fire ant from spreading
throughout its ecological range within
the country.
The regulations in § 301.81–3 provide
that the Administrator of the Animal
and Plant Health Inspection Service
(APHIS) will list as a quarantined area
each State, or each portion of a State,
that is infested with the imported fire
ant. The Administrator will designate
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Frm 00006
Fmt 4700
Sfmt 4700
less than an entire State as a
quarantined area only under the
following conditions: (1) The State has
adopted and is enforcing restrictions on
the intrastate movement of the regulated
articles listed in § 301.81–2 that are
equivalent to the interstate movement
restrictions imposed by the regulations;
and (2) designating less than the entire
State will prevent the spread of the
imported fire ant. The Administrator
may include uninfested acreage within
a quarantined area due to its proximity
to an infestation or its inseparability
from an infested locality for quarantine
purposes.
In § 301.81–3, paragraph (e) lists
quarantined areas. We are amending
§ 301.81–3(e) by:
• Adding all of Perry County, AR, to
the quarantined area and expanding the
quarantined area in Polk County, AR;
and
• Adding portions of Anderson,
Davidson, Gibson, Knox, Rutherford,
Tipton, Van Buren, and Williamson
Counties, TN, to the quarantined area
and expanding the quarantined area in
Bedford, Benton, Blount, Carroll,
Cumberland, Grundy, Haywood,
Hickman, Humphreys, Loudon, Maury,
Roane, and Sequatchie Counties, TN.
We are taking these actions because
recent surveys conducted by APHIS and
State and county agencies revealed that
the imported fire ant has spread to these
areas. See the rule portion of this
document for specific descriptions of
the new and revised quarantined areas.
Emergency Action
This rulemaking is necessary on an
emergency basis to prevent the spread of
imported fire ant into noninfested areas
of the United States. Under these
circumstances, the Administrator has
determined that prior notice and
opportunity for public comment are
contrary to the public interest and that
there is good cause under 5 U.S.C. 553
for making this rule effective less than
30 days after publication in the Federal
Register.
We will consider comments we
receive during the comment period for
this interim rule (see DATES above).
After the comment period closes, we
will publish another document in the
Federal Register. The document will
include a discussion of any comments
we receive and any amendments we are
making to the rule.
Executive Order 12866 and Regulatory
Flexibility Act
This rule has been reviewed under
Executive Order 12866. For this action,
the Office of Management and Budget
E:\FR\FM\26JYR1.SGM
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]]>Agencies
[Federal Register Volume 71, Number 143 (Wednesday, July 26, 2006)]
[Rules and Regulations]
[Pages 42241-42246]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-6464]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
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 deidre.dessommes@opm.gov.
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, https://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
