[Federal Register Volume 78, Number 36 (Friday, February 22, 2013)]
[Rules and Regulations]
[Pages 12219-12221]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-04095]

Rules and Regulations
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Federal Register / Vol. 78, No. 36 / Friday, February 22, 2013 / 
Rules and Regulations

[[Page 12219]]


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: Final regulation.


SUMMARY: The U.S. Office of Personnel Management (OPM) is issuing a 
final regulation pertaining to the appointment of persons with 
intellectual disabilities, severe physical disabilities, and 
psychiatric disabilities. The regulation removes an unnecessary burden 
for these individuals when applying for Federal jobs and modernizes the 
terminology used to describe people with disabilities.

DATES: This final rule is effective March 25, 2013.

FOR FURTHER INFORMATION CONTACT: Phillip Spottswood by telephone on 
(202) 606-1389, by FAX on (202) 606-4430, by TDD on (202) 418-3134, or 
by email at phil.spottswood@opm.gov.

SUPPLEMENTARY INFORMATION: On February 7, 2012, OPM issued a proposed 
regulation at 77 FR 6022 to implement changes to the regulations in 5 
CFR 213.3102(u) governing the appointment of people with mental 
retardation, severe physical disabilities, and psychiatric 
disabilities. As noted in the proposed rule, Sec.  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 has been used as the basis for determining that an 
applicant can be reasonably expected to perform in a particular work 
environment. Persons with disabilities today, however, often have work, 
educational, and/or other relevant experience that an agency may rely 
upon to determine whether they are likely to succeed in a particular 
work environment. Consequently we believe that a requirement that 
applicants provide a separate ``certification of job readiness'' is not 
    Elimination of the requirement that applicants supply a 
certification of job readiness will speed the hiring process for 
agencies by removing 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 
process. Consequently, the proposed regulation eliminated the 
requirement that an applicant supply a ``certification of job 
readiness'' when seeking employment under this authority. The proposal 
also sought to modernize terminology used in the regulation herein by 
replacing the phrase ``mental retardation'' with ``intellectual 
    OPM received 12 sets of comments in response to the proposed 
changes to the regulation in 5 CFR 213.3102(u). Comments on the 
proposed changes were received from private citizens, two Federal 
agencies, a university law center, a professional organization, and a 
disability advocacy group.
    One individual suggested OPM retain the ``certification of job 
readiness'' requirement as it currently exits. This commenter was 
concerned that agencies may be reluctant to hire an individual with a 
disability, even on a temporary basis, if the applicant had little or 
no work experience, or no work experience since becoming disabled. The 
commenter believes the ``certification of job readiness'' provides an 
objective basis for agencies to make hiring decisions, compared to the 
subjective and discretionary nature of the temporary employment option 
set out in section 213.3102(u)(5). Although we appreciate the concerns 
raised by this commenter, OPM is not adopting the suggestion to retain 
the ``certification of job readiness'' requirement. We believe the 
advantages of eliminating the ``certification of job readiness'' 
outweigh the potential disadvantages. These advantages, which will be 
realized by both people with disabilities and Federal agencies, include 
a speedier hiring process and the removal of a paperwork burden on job 
    Three commenters supported the proposed changes as being 
improvements to the employment of people with disabilities. One 
commenter noted that the certification had been ``a source of delay and 
red tape'' in the past and that this change was long overdue. One 
disability advocacy group stated that removing the certification of job 
readiness would both normalize and improve the timeliness of the hiring 
process. A professional organization agreed with both of the proposed 
changes. It noted that there had been confusion regarding the meaning 
of ``job readiness.'' The remaining comments from the professional 
organization are addressed below.
    An individual agreed with the elimination of the ``certification of 
job readiness'' requirement and the change in terminology to 
``intellectual disabilities.'' The commenter also suggested, however, 
that OPM establish in the final rule a time period during which 
agencies must determine whether an individual serving on temporary 
appointment under Sec.  213.3102(u)(5) can perform the duties of the 
position. This commenter expressed concern that individuals on 
temporary appointments would remain on these appointments for overly 
long durations in the absence of a determination period. OPM is not 
adopting this suggestion because it is unnecessary. A temporary 
appointment in the excepted service is, by definition, limited to 1 
year or less and may be extended for no more than 1 additional year (5 
CFR 213.104). Therefore, we do not foresee instances of overly long 
temporary appointments. In addition, because each case may be unique, 
agencies may need varying amounts of time to determine the job 
readiness of individuals serving on temporary appointments.
    The same individual suggested OPM provide guidance to help agencies 
determine the appropriateness of making a temporary appointment versus 
a permanent appointment. Because the circumstances pertaining to each 
applicant will be unique, OPM cannot provide guidance to assist 
agencies with every potential circumstance. Therefore, OPM is not 
adopting this suggestion.

[[Page 12220]]

Agencies may make temporary appointments when the agency cannot 
otherwise determine (based on available information) whether the 
applicant is likely to succeed in a particular work environment, or in 
instances when the work to be performed is truly of a temporary nature 
(e.g., short-term project work).
    This individual also suggested that OPM provide a mechanism to 
ensure people with disabilities are given a full opportunity to display 
their abilities through education or experience as measured against 
specific criteria. We agree with the suggestion but note it is already 
in place. People with disabilities appointed under this authority are 
already subject to agency-developed qualification standards, against 
which their performance is measured (in the same fashion as any Federal 
    One Federal agency suggested we change the phrase ``intellectual 
disability'' to ``severe intellectual disability'' on the basis that 
``intellectual disability'' includes minor intellectual impairments 
which do not constitute ``mental retardation.'' OPM is not adopting 
this suggestion. OPM is constrained in implementing the Executive 
Orders underlying this regulation by the scope of those Orders 
themselves. OPM's change was prompted by Congress's enactment, on 
October 6, 2010, of ``Rosa's Law,'' which changed references from 
``mental retardation'' to ``intellectual disability,'' and a desire to 
use similar, less stigmatizing terminology here without changing the 
underlying scope of coverage of the regulation.
    The same Federal agency recommended that OPM retain the 
``certification of job readiness'' but establish its use as optional 
under these provisions. OPM is not adopting this suggestion. As noted 
above, we believe elimination of the ``certification of job readiness'' 
benefits both applicants and agencies by better facilitating the entry 
of people with disabilities into Federal service.
    Lastly, several responses contained comments and/or suggestions (in 
whole or in part) that were beyond the scope of the proposed changes. 
As a result, OPM is not addressing these comments, beyond acknowledging 
their receipt:

 An agency suggested we reword the last sentence in Sec.  
213.3102(u)(5)(i) by inserting the word ``successfully'' before the 
word ``perform'' in the phrase, ``* * * whenever the agency determines 
the individual is able to perform the duties of the position.''
 A university law center questioned the overall effectiveness 
of the proposed changes to schedule A hiring rules for people with 
 One individual claimed his employer discriminated against him 
and separated him due to his disability.
 One commenter expressed difficulty in applying for and 
obtaining a Federal job.
 An individual commented that the proposed changes will not 
contribute to successful implementation of Executive Order 13548 
titled, ``Increasing Federal Employment of Individuals with 
Disabilities,'' because these provisions are discretionary and many 
agencies choose to fill their positions via merit (or internal) 
promotion procedures. The commenter proposed the following changes:
    [cir] OPM should change the word ``may'' to ``shall'' in Sec.  
213.3102(u)(2)(ii), to require agencies to accept the documentation 
described in that paragraph as proof of disability; change ``may'' to 
``shall'' in Sec.  213.3102(u)(4) regarding authority for permanent or 
time-limited appointments; and change ``may'' to ``shall'' in Sec.  
213.3102(u)(6)(ii), regarding crediting time spent under a temporary 
appointment towards eligibility for noncompetitive conversion to the 
competitive service; and
    [cir] OPM should require agencies to use these provisions for no 
less than 2 percent of all hires.
 The same individual submitted a second comment in which it 
proposed reopening the rule in order to model it after the ``Pathways 
Programs'' established under 5 CFR part 362.
 An agency suggested that OPM revise the criteria pertaining to 
``proof of disability'' in Sec.  213.3102(u)(3)(ii). The agency also 
suggested OPM require Federal agencies to accept and process 
applications made under this hiring authority, rather than allow 
agencies to redirect applicants (in some instances) to the USAJOBS Web 
 The professional organization also requested clarification as 
to documentation for ``proof of disability'' and the authorized 
signatories for the Schedule A certification letter.
    OPM is adopting the proposed rule as final, with only a few very 
minor editorial corrections.

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 for Federal jobs.

Executive Order 12866, Regulatory Review

    This rule has been reviewed by the Office of Personnel Management 
and Budget in accordance with Executive order 12866.

List of Subjects in 5 CFR Part 213

    Government employees, Individuals with disabilities.

U.S. Office of Personnel Management.
John Berry,
    Accordingly, OPM is amending 5 CFR part 213 as follows:


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, 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 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 

[[Page 12221]]

(e.g., records, statements, or other appropriate information) issued by 
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 benefits.
    (4) Permanent or time-limited employment options. An agency may 
make permanent or time-limited appointments under this paragraph (u)(4) 
where an applicant supplies proof of disability as described in 
paragraph (u)(3) of this section 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 the 
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) The agency determines that 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 paragraph (u)(6)(ii) of this section.
    (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. 2013-04095 Filed 2-21-13; 8:45 am]