[Federal Register Volume 65, Number 131 (Friday, July 7, 2000)]
[Rules and Regulations]
[Pages 41867-41868]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-17125]



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Rules and Regulations
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Federal Register / Vol. 65, No. 131 / Friday, July 7, 2000 / Rules 
and Regulations

[[Page 41867]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR PARTS 3, 213, 315

RIN 3206-AI94


Appointments of Persons With Psychiatric Disabilities

AGENCY: Office of Personnel Management.

ACTION: Final rule.

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SUMMARY: The Office of Personnel Management (OPM) is issuing final 
regulations creating a new Governmentwide excepted appointing 
authority, with noncompetitive conversion to the competitive service 
authorized by Executive Order 13124, for persons with psychiatric 
disabilities. The regulations also abolish two excepted service 
appointing authorities that relate to persons with psychiatric 
disabilities, and make technical corrections.

EFFECTIVE DATES: August 7, 2000.
    Conformity date: For all new appointments under 5 CFR 213.3102(gg), 
agencies may begin to use the authority on August 7, 2000. All 
individuals who are currently serving under the 2 authorities that will 
be abolished by this regulation, 5 CFR 213.3102(h) and 213.3202(k), 
must be converted to the new appointment, 5 CFR 213.3102(gg), by 
January 3, 2001.

FOR FURTHER INFORMATION CONTACT: John Riedel-Alvarez or Kitty Kobert on 
(202) 606-1059, TTY (202) 606-0023, or FAX (202) 606-0927.

SUPPLEMENTARY INFORMATION: The Presidential Task Force on Employment of 
Adults with Disabilities was created in 1998 to address the 
underemployment of people with disabilities. Its first report, 
``Recharting the Course,'' recommended that OPM look into paralleling 
the excepted service hiring standards of adults with psychiatric 
disabilities with the excepted service hiring standards of individuals 
with mental retardation and severe physical disabilities. After careful 
review of the standards, we agreed they all should be the same.
    As a result, we issued proposed regulations on March 17, 2000, to 
amend the Civil Service Rules to reflect Executive Order 13124, June 4, 
1999, permitting persons with psychiatric disabilities to be converted 
to the competitive service after 2 years of satisfactory service. In 
order to ensure that as many people with psychiatric disabilities are 
covered as possible, we proposed creating a new excepted service 
appointing authority for persons with psychiatric disabilities. To 
avoid confusion and duplication, we also proposed abolishing 2 existing 
excepted service appointing authorities for persons with psychiatric 
disabilities that were not broadly defined.
    We received comments on the regulations from 4 Federal agencies, 2 
advocacy organizations, 1 State agency, and 1 individual.

Comments

    One Federal agency was confused about how the authority will be 
implemented based on the proposed wording. Specifically, it was unclear 
whether those who have certification in subparagraph (2) are the only 
ones eligible for noncompetitive conversion. It was also unclear 
whether temporary appointments may be made under the (gg) authority. 
Therefore, we are revising the authority to clarify a number of items 
as follows:
    (1) We are eliminating the subparagraphs to make it clear that 
either individuals who served under temporary appointments or those who 
receive certification may be appointed under the (gg) authority. After 
2 years of satisfactory service under the authority, they are eligible 
for noncompetitive conversion to the competitive service.
    (2) On the effective date of this regulation, and through an OPM 
Notice of Policy Information (being issued concurrently and available 
on OPM's website, www.opm.gov), agencies may use 5 CFR 213.3102(i)(3) 
to make temporary appointments of persons with psychiatric 
disabilities. These temporary appointments may be used to fulfill the 
requirements of the new (gg) authority. [Temporary appointments are 
defined for the excepted service in 5 CFR 213.104(a)(1).] This 
flexibility, and adding the language to (gg), will make it clear that 
temporary appointments are not authorized under (gg), but under (i)(3).
    (3) We are also clarifying that noncompetitive conversion of those 
who have 2 years of satisfactory performance under (gg) is at the 
discretion of the agency, rather than a right of the individual.
    One Federal agency suggested that time under temporary appointments 
is permissible for noncompetitive conversion to a permanent position in 
the competitive service, changing the conversion requirement in 5 CFR 
315.709. We did not adopt this suggestion. There is no basis for a 
contention that temporary status in the excepted service confers 
permanent status in the competitive service.
    Two advocacy organizations favored language found in the ADA that 
refers to certifying individuals under the (gg). We agree it is hard to 
assess and certify that an individual with a psychiatric illness is 
``likely to succeed in the performance of duties.'' Instead, we will 
use the language suggested by the 2 organizations.
    Two advocacy organizations also suggested adding community 
rehabilitation programs to the list of those who may certify 
individuals with psychiatric disabilities. We are not changing the 
authority at this time; we want to research this further before 
adopting it as an option for agencies.
    One Federal agency recommended that OPM add language to describe 
how the disabilities are evidenced, similar to language in the 
abolished 5 CFR 213.3202(k). We believe a better place to provide more 
information is in the ``People with Disabilities in the Federal 
Government--An Employment Guide.'' OPM will update this resource guide 
to add more information for agencies on psychiatric disabilities.

Implementation

    Agencies must move those who are currently serving under the soon-
to-be-abolished 5 CFR 213.3102(h) and 5 CFR 213.3202(k) authorities to 
the new authority, 5 CFR 213.3102(gg), as soon as possible. Those 
individuals may serve the remaining time under the (gg) and be eligible 
for noncompetitive conversion. A current employee's service under 5 CFR 
213.3102(h) or 5 CFR 3202(k) will count toward the 2-

[[Page 41868]]

year period needed for noncompetitive conversion.
    OPM's Guide to Personnel Data Standards and The Guide to Processing 
Personnel Actions will be updated to reflect the new changes. These 
Guides are available on OPM's website, www.opm.gov.

Regulatory Flexibility Act

    I certify that these regulations will not have a significant 
economic impact on a substantial number of small entities (including 
small businesses, small organizational units, and small governmental 
jurisdictions) because the regulations apply only to appointment 
procedures for certain employees in Federal agencies.

E.O. 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 3, 213, and 315

    Government employees.

Office of Personnel Management.
Janice R. Lachance,
Director.

    Accordingly, OPM is amending parts 3, 213, and 315 of title 5, Code 
of Federal Regulations, as follows:

PART 3--NONCOMPETITIVE ACQUISITION OF STATUS (RULE III)

    1. The authority citation for part 3 continues to read as follows:

    Authority: 5 U.S.C. 3301, 3302.

    2. In Sec. 3.1, paragraph (b)(3) is added to read as follows:


Sec. 3.1  Classes of persons who may noncompetitively acquire status.

* * * * *
    (b) * * *
    (3) An employee with a psychiatric disability who completes at 
least 2 years of satisfactory service in a position excepted from the 
competitive service.

PART 213--EXCEPTED SERVICE

    3. The authority citation for part 213 continues to read as 
follows:

    Authority: 5 U.S.C. 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. 12364, 47 FR 22931, 3 CFR 1982 Comp., p. 185; 38 
U.S.C. 4301 et seq., and Pub. L. 105-339.


    4. In Sec. 213.3102, paragraph (h) is removed and reserved. 
Paragraph (gg) is added to read as follows:


Sec. 213.3102  Entire executive civil service.

* * * * *
    (gg) Positions when filled by persons with psychiatric disabilities 
who have demonstrated their ability to perform satisfactorily under a 
temporary appointment [such as one authorized in 213.3102(i)(3)] or who 
are certified as likely to be able to perform the essential functions 
of the job, with or without reasonable accommodation, by a State 
vocational rehabilitation counselor, a U.S. Department of Veterans 
Affairs Veterans Benefits Administration or Veterans Health 
Administration psychologist, vocational rehabilitation counselor, or 
psychiatrist. Upon completion of 2 years of satisfactory service under 
this authority, the employee can be converted, at the discretion of the 
agency, to competitive status under the provisions of Executive Order 
12125 as amended by Executive Order 13124.
* * * * *

    5. In Sec. 213.3202, paragraph (k) is removed and reserved.

PART 315--CAREER AND CAREER-CONDITIONAL EMPLOYMENT

    6. The authority citation for part 315 continues to read as 
follows:

    Authority: 5 U.S.C. 1302, 3301, 3302; E.O. 10577, 3 CFR 1954-
1958 Comp., p. 218, unless otherwise noted.

    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.
    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.


    7. Section 315.709 is amended by revising the section heading, the 
introductory text of paragraph (a), and paragraphs (a)(1), and (b)(2) 
to read as follows:


Sec. 315.709  Employees who are mentally retarded, severely physically 
handicapped, or have psychiatric disabilities serving under Schedule A 
appointments.

    (a) Coverage. Employees appointed under Secs. 213.3102(t), (u), and 
(gg) of this chapter may have their appointments converted to career or 
career-conditional appointments when they:
    (1) Complete 2 or more years of satisfactory service, without a 
break of more than 30 days, under nontemporary Schedule A appointments.
* * * * *
    (b) * * *
    (2) A career employee if he or she has completed 3 years of 
substantially continuous service in nontemporary appointments under 
Secs. 213.3102(t), (u), or (gg) of this chapter, or has otherwise 
completed the service requirement for career tenure, or is excepted 
from it by Sec. 315.201(c).
* * * * *
[FR Doc. 00-17125 Filed 7-3-00; 11:20 am]
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