[Federal Register Volume 77, Number 25 (Tuesday, February 7, 2012)]
[Proposed Rules]
[Pages 6022-6023]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-2660]

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.


Federal Register / Vol. 77, No. 25 / Tuesday, February 7, 2012 / 
Proposed Rules

[[Page 6022]]


5 CFR Part 213

RIN 3206-AM07

Excepted Service--Appointment of Persons With Intellectual 
Disabilities, Severe Physical Disabilities, and Psychiatric 

AGENCY: U.S. Office of Personnel Management.

ACTION: Proposed rule.


SUMMARY: The U.S. Office of Personnel Management (OPM) is proposing to 
amend its regulations pertaining to the appointment of persons with 
disabilities. The proposed changes eliminate the requirement that an 
applicant supply a certification of job readiness and provide 
clarification on appointments under this authority. In addition, OPM is 
cognizant of a change in terminology as evinced, for example in 
``Rosa's Law,'' which Congress enacted in October of 2010. Although 
Rosa's Law is not applicable here, it has prompted us to reconsider our 
own use of terminology, and we propose to substitute the phrase 
``intellectual disability'' for the phrase ``mental retardation'' 
throughout this Part, without any change in the intended coverage.

DATES: We will consider comments received on or before April 9, 2012.

ADDRESSES: You may submit comments, identified by RIN number 3206-AM07, 
by any of the following methods:
    Federal eRulemaking Portal: http://www.regulations.gov. All 
submissions received through the Portal must include the agency name 
and docket number or Regulation Identifier Number (RIN) for this 
proposed rulemaking. Additional instructions are provided at the 
regulations.gov Web site.
    Email: employ@opm.gov. Include the RIN 3206-AM07 in the subject 
line of the message.
    Fax: (202) 606-2329.
    Mail: Karen R. Jacobs, Acting Deputy Associate Director for 
Recruitment and Hiring 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: Gale Perryman by telephone on (202) 
606-1143, by FAX on (202) 606-4430, by TDD on (202) 418-3134, or by 
email at gale.perryman@opm.gov.

SUPPLEMENTARY INFORMATION: The U.S. Office of Personnel Management 
(OPM) is proposing to revise the regulations in 5 CFR 213.3102(u) 
governing the appointment of people with mental retardation, severe 
physical disabilities, and psychiatric disabilities. Paragraph (u) of 
section 213.3102 implements Executive Orders 12125 and 13124 to provide 
a special hiring authority for people with intellectual disabilities, 
severe physical disabilities, and psychiatric disabilities. This 
Schedule A authority is subject to the general provisions of Subpart A, 
5 CFR PART 213 for temporary and time-limited appointments. The 
proposed revisions are described below:

Subpart C Excepted Schedules

    On October 6, 2010, Congress enacted ``Rosa's Law,'' which changes 
references from ``mental retardation'' or ``individuals with mental 
retardation'' to ``intellectual disability'' or ``individual with 
intellectual disability'' in various statutes the law amended and 
required conforming changes in related regulations. Although Rosa's Law 
is inapplicable to the President's creation of an excepted service 
hiring authority for persons with specified disabilities, this statute 
nevertheless prompted OPM to reconsider its own use of terminology. As 
a result of that process, we propose to revise our language to replace 
the term ``mental retardation'' with the currently more commonly used 
term ``intellectual disability.'' We added a new paragraph (u)(2) 
Definitions, to define ``intellectual disability'' as meaning only 
those intellectual disabilities that would, under prior iterations of 
this regulation, have been encompassed by the term ``mental 
retardation.'' This addition causes all current paragraphs to change by 
one number.
    Section 213.3102(u)(3)(i) currently requires all applicants seeking 
either a permanent or time-limited appointment to supply a 
``certification of job readiness.'' This certification, which may be 
prepared by one of the entities identified in 213.3102(u)(2), has been 
used as the basis for determining that an applicant can reasonably be 
expected to perform in a particular work environment. For instance, the 
certification of readiness for an individual applying for a position as 
an Administrative Assistant or Accountant might state that the 
applicant ``is likely to succeed performing work in an office 
environment.'' In the alternative, the current 213.3102(u)(3)(ii) 
allows agencies to give individuals a temporary appointment to 
establish their ability to perform in the relevant environment when the 
certification of job readiness has not been provided.
    We believe that a requirement that applicants provide a separate 
``certification of job readiness'' is not necessary. Persons with 
disabilities today often have work, educational, or other relevant 
experience that an agency may rely upon to determine whether they are 
likely to succeed in a particular work environment. Agencies also 
possess the option of giving individuals a temporary appointment that 
will allow them to establish their job readiness. In those 
circumstances, the agency may convert the individual to a permanent 
appointment, once it determines that the individual is able to perform 
the duties of the position.
    Elimination of the requirement that applicants supply a 
certification of job readiness will speed the hiring process for 
agencies and remove an unnecessary burden on applicants with 
disabilities. This is consistent with the policy outlined in the 
President's Memorandum of May 11, 2010 regarding the elimination of 
unnecessary complexities and inefficiencies in the federal hiring 
    The proposed section 213.3102(u)(4) provides for permanent or time-
limited appointment options when individuals have proof of disability 
and an agency determines that they are ``job ready''--that is, that 
they are likely to succeed in performing in the required work 
environment. Under the proposed regulations, the agency determination 
of job readiness may be based upon any

[[Page 6023]]

relevant work, educational, or other experience. Section 213.3102(u)(5) 
addresses temporary employment options, mainly when a determination of 
job readiness cannot be made based on an individual's prior work, 
educational, or other experience. We propose to modify this section to 
clarify the appropriate uses of the temporary employment option (i.e. 
to determine job readiness, or when the duties to be performed are 
truly of a short-term nature).

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 Part 213

    Government employees, Excepted Schedules.

U.S. Office of Personnel Management.
John Berry,

    Accordingly, OPM is proposing to revise 5 CFR 213.3102 as follows:


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

    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, 3 CFR 1982 Comp., p. 185; 38 U.S.C. 
4301 et seq.; Pub. L. 105-339, 112 Stat 3182-83; E.O. 13162; E.O. 
12125, 3 CFR 1979 Comp., p. 16879; and E.O. 13124, 3 CFR 1999 Comp., 
p. 31103; and Presidential Memorandum--Improving the Federal 
Recruitment and Hiring Process (May 11, 2010).

    2. In Sec.  213.3102 revise paragraph (u) to read as follows:

Sec.  213.3102  Entire executive civil service.

* * * * *
    (u) Appointment of persons with intellectual disabilities, severe 
physical disabilities, or psychiatric disabilities--(1) Purpose. An 
agency may appoint, on a permanent, time-limited, or temporary basis, a 
person with an intellectual disability, a severe physical disability, 
or a psychiatric disability according to the provisions described 
    (2) Definition. ``Intellectual disabilities'' means only those 
disabilities that would have been encompassed by the term ``mental 
retardation'' in previous iterations of this regulation and the 
associated Executive Order, Executive Order 12125, dated March 15, 
    (3) Proof of disability. (i) An agency must require proof of an 
applicant's intellectual disability, severe physical disability, or 
psychiatric disability prior to making an appointment under this 
    (ii) An agency may accept, as proof of 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 (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 
    (4) Permanent or time-limited employment options. An agency may 
make permanent or time-limited appointments under this subsection where 
an applicant supplies proof of disability as described in paragraph (3) 
above and the agency determines that the individual is likely to 
succeed in the performance of the duties of the position for which he 
or she is applying. In determining whether the individual is likely to 
succeed in performing the duties of his position, the agency may rely 
upon the applicant's employment, educational, or other relevant 
experience, including but not limited to service under another type of 
appointment in the competitive or excepted services.
    (5) Temporary employment options. An agency may make a temporary 
appointment 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 in the excepted service whenever 
the agency determines the individual is able to perform the duties of 
the position; or
    (ii) 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 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, 
except as provided in (u)(6)(ii).
    (ii) Time spent on a temporary appointment specified in paragraph 
(u)(5)(ii) of this section does not count towards the 2-year 
* * * * *
[FR Doc. 2012-2660 Filed 2-6-12; 8:45 am]