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1833

Proposed Rules Federal Register


Vol. 70, No. 7

Tuesday, January 11, 2005

This section of the FEDERAL REGISTER on (202) 418–3134, or by e-mail at is disabled and likely to successfully
contains notices to the public of the proposed employ@opm.gov. perform duties of the job for which he
issuance of rules and regulations. The or she is applying (including Federal
SUPPLEMENTARY INFORMATION: In
purpose of these notices is to give interested jobs) may be provided only by the
persons an opportunity to participate in the February 2001, President George W.
Bush introduced the New Freedom Department of Veterans Affairs (VA) or
rule making prior to the adoption of the final
rules. Initiative (http://www.whitehouse.gov/ an applicable State Vocational
news/freedominitiative/ Rehabilitation Agency (SVRA).
freedominitiative.html) to eliminate Similarly, only SVRAs may provide the
OFFICE OF PERSONNEL ‘‘the barriers to equality that face many required certification for a person with
MANAGEMENT of the 54 million Americans with mental retardation. Thus, an individual
disabilities.’’ In so doing, the President with a disability determination from a
5 CFR Parts 213 and 315 stated that persons with disabilities Federal agency other than the VA may
‘‘should have every freedom to pursue not use that documentation for purposes
RIN 3206–AK58 careers, integrate into the workforce, of obtaining eligibility for a Schedule A
and participate as full members in the excepted appointment for a Federal job.
Excepted Service—Appointment for economic marketplace.’’ The proposed rulemaking seeks to
Persons With Disabilities and Career To further the objectives of the New remedy this situation by delegating this
and Career-Conditional Employment Freedom Initiative, OPM reviewed the certification authority to other Federal
AGENCY: Office of Personnel regulations governing the appointment agencies under certain conditions.
Management. of persons with disabilities to positions OPM believes the proposed
in the Federal Government. At present, regulations will facilitate the Federal
ACTION: Proposed rule.
those regulations permit agencies to Government’s ability to hire persons
SUMMARY: The Office of Personnel make expedited Schedule A ‘‘excepted’’ with disabilities, in furtherance of the
Management (OPM) is proposing appointments to persons with President’s New Freedom Initiative,
changes to existing regulations disabilities if they have been certified as introduced in February 2001, which was
regarding the excepted appointments of having mental retardation (as that term designed to increase employment
persons with mental retardation, severe is used in Executive Order 12125 dated opportunities for persons with
physical, and psychiatric disabilities. March 15, 1979), or severe physical or disabilities. We seek comments on the
These changes will provide agencies the psychiatric disability. However, the proposed changes from all interested
authority to determine, on a case-by- certification process is onerous and parties, but especially from agencies on
case basis, whether these individuals complicated, involving review by State their ability to determine the eligibility
can receive an excepted appointment and/or Federal agencies even where the
of applicants with disabilities for
based solely on medical documentation disability has been clearly diagnosed by
appointment under Schedule A and
submitted by the applicant. We also a licensed medical authority. After
evaluating these applicants’ likelihood
propose to consolidate three excepted careful consideration of that
of success in a specific job without
appointing authorities for persons with certification requirement, we propose
certification from a state or Veterans
the above disabilities into one authority. changing the current regulations to
Administration vocational rehabilitation
DATES: We will consider comments
simplify the disability determination
counselor.
received on or before March 14, 2005. process in certain cases, consolidate the
three existing Schedule A appointing Proposed Amendments
ADDRESSES: You may submit comments, authorities for persons with mental
identified by RIN number, by any of the retardation, severe physical, or Under these proposed regulations,
following methods: psychiatric disabilities, and thereby one consolidated authority would
• Federal eRulemaking Portal: http:// streamline the Federal hiring process for replace the following:
www.regulations.gov. Follow the these deserving individuals. Schedule A authority § 213.3102(t) for
instructions for submitting comments. OPM currently provides agencies positions when filled by people with
• E-mail: employ@opm.gov. Include three separate appointing authorities for mental retardation; Schedule A
‘‘RIN 3206–AK58’’ in the subject line of individuals with mental retardation, authority § 213.3102(u) for positions
the message. severe physical, and psychiatric
• Fax: (202) 606–2329. when filled by people with severe
disabilities. The provisions for each physical disabilities; and
• Mail: Mark Doboga, Deputy authority were authorized under
Associate Director for Talent and Executive Order (E.O.) 12125, as Schedule A authority § 213.3102(gg)
Capacity Policy, U.S. Office of amended by E.O. 13124, and vary only for positions when filled by people with
Personnel Management, Room 6551, slightly from one another. The proposed psychiatric disabilities.
1900 E Street, NW., Washington, DC rules standardize and consolidate these Using the new program, agencies will
20415–9700. provisions into one streamlined appoint individuals under
• Hand Delivery/Courier: OPM, Room appointing authority. § 213.3102(u). The new Schedule A
6551, 1900 E Street, NW., Washington, In addition, the current regulations authority contains updated certification
DC 20415. specify that, for purposes of these procedures, a temporary employment
FOR FURTHER INFORMATION CONTACT: appointments, the certification that a option, and requirements for non-
Larry Lorenz by telephone on (202) 606– person with a severe physical disability competitive conversion to the
0960, by fax on (202) 606–2329, by TDD or a person with a psychiatric disability competitive service.

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1834 Federal Register / Vol. 70, No. 7 / Tuesday, January 11, 2005 / Proposed Rules

Certification Procedures appointment made under the proposed agency, or a State Vocational Rehabilitation
regulations. Agency (SVRA), as having from one or more
This proposed rule will allow Federal of those conditions; and who has:
agencies to certify, then immediately Appointments (i) Demonstrated his or her ability to
hire, disabled applicants who are likely The proposed rule contains only one perform satisfactorily the duties of the
to succeed as Federal employees. authority, 5 CFR 213.3102(u), for position for which he or she is applying by
The proposed certification procedures appointments of persons with serving previously on a temporary
authorize any Federal agency to certify, appointment; or
disabilities. When these regulations (ii) Been certified by the appointing
on a case-by-case basis, that a particular become effective, agencies will convert
applicant has provided sufficient agency, another Federal agency, or a State
the appointments of individuals Vocational Rehabilitation Agency (SVRA) as
evidence of mental retardation, severe currently serving on appointments likely to succeed in the performance of the
physical, or psychiatric disability; such under the superseded authorities to 5 duties of the position for which he or she is
evidence may be certification from the CFR 213.3102(u). OPM’s Central applying.
Social Security Administration (SSA) or Personnel Data File will continue to (2) Non-competitive conversion. An agency
a licensed physician. In addition, the retain the legal authority code required may non-competitively convert to the
proposed procedures authorize the by the Guide to Processing Personnel competitive service an employee who has
agency to determine whether a disabled Actions for analysis by disability type. completed 2 years of satisfactory service
applicant is likely to successfully under this authority in accordance with the
perform the job for which he or she is Regulatory Flexibility Act provisions of Executive Order 12125 as
applying. By authorizing agencies to amended by Executive Order 13124 and
I certify that this regulation will not § 315.709 of this chapter.
make such certifications on a case-by- have a significant economic impact on
case basis, the proposed regulations will a substantial number of small entities * * * * *
eliminate an unnecessary burden on because it affects only certain potential
disabled job applicants as well as PART 315—CAREER AND CAREER-
applicants and Federal employees. CONDITIONAL EMPLOYMENT
potentially duplicative certification
procedures. Agencies will retain the Executive Order 12866, Regulatory
3. The authority citation for part 315 is
option of requiring VA or SVRA Review revised to read as follows:
certification of a disabled applicant This rule has been reviewed by the Authority: 5 U.S.C. 1302, 3301, and 3302;
where the agencies are unable to make Office of Management and Budget in E.O. 10577. 3 CFR, 1954–1958 Comp. p. 218,
a determination based on accordance with Executive Order 12866. unless otherwise noted; and E.O. 13162.
documentation submitted by the Secs. 315.601 and 315.609 also issued under
List of Subjects in 5 CFR Parts 213 and
applicant. 22 U.S.C. 3651 and 3652. Secs. 315.602 and
315
To determine whether to certify an 315.604 also issued under 5 U.S.C. 1104. Sec.
individual, Federal agencies would be Government employees, Reporting 315.603 also issued under 5 U.S.C. 8151. Sec.
required to review medical and recordkeeping requirements. 315.605 also issued under E.O. 12034, 3 CFR,
documentation presented by the job 1978 Comp. p. 111. Sec. 315.606 also issued
Office of Personnel Management.
applicant, such as a physician’s under E.O. 11219, 3 CFR, 1964–1965 Comp.
Kay Coles James, p. 303. Sec. 315.607 also issued under 22
statement or disability documentation Director. U.S.C. 2506. Sec. 315.608 also issued under
from the SSA and/or an appropriate Accordingly, OPM proposes to amend E.O. 12721, 3 CFR, 1990 Comp. p. 293. Sec.
State Disability Determination Services 5 CFR parts 213 and 315 as follows: 315.610 also issued under 5 U.S.C. 3304(d).
agency (if the severe physical disability Sec. 315.611 also issued under Section 511,
is not obvious), and all other relevant PART 213—EXCEPTED SERVICE Pub. L. 106–117, 113 Stat. 1575–76. Sec.
evidence needed to determine if the 315.708 also issued under E.O. 13318. Sec.
applicant is likely to succeed in the job 1. The authority citation for part 213 315.710 also issued under E.O. 12596, 3 CFR,
(e.g., degrees from accredited colleges, is revised to read as follows: 1987, Comp. p. 229. Subpart I also issued
work experience, tests, etc.). under 5 U.S.C. 3321, E.O. 12107, 3 CFR, 1978
Authority: 5 U.S.C. 3161, 3301 and 3302; Comp. p. 264.
Temporary Employment Option E.O. 10577, 3 CFR 1954–1958 Comp., p. 218.
Sec. 213.101 also issued under 5 U.S.C. Subpart B—The Career-Conditional
The proposed regulations will retain a 2103. Employment System
temporary employment option as an Sec. 213.3102 also issued under 5 U.S.C.
alternative to the certification 3301, 3302, 3307, 8337(h), and 8456; E.O. 4. In § 315.201 revise paragraph (b)(1)(xii)
procedures described above. Under this 13318, 47 FR 22931, 3 CFR 1982 Comp., p. to read as follows:
option, agencies may offer a Schedule A 185; 38 U.S.C. 4301 et seq.; Pub. L. 105–339,
excepted appointment, without further 112 Stat 3182–83; and E.O. 13162. § 315.201 Service requirement for career
tenure.
certification, to people with disabilities 2. Amend § 213.3102 by removing and
who have already demonstrated their reserving paragraphs (t) and (gg), and by * * * * *
ability to perform duties satisfactorily revising paragraph (u) to read as (b) * * *
under a temporary appointment. follows: (1) * * *
Requirements for Non-Competitive § 213.3102 Entire executive civil service. (xii) The date of nontemporary
Conversion * * * * * appointment under Schedule A,
For a person with mental retardation, (u) Appointment for Persons With § 213.3102(u) of this chapter, of a person
severe physical, or psychiatric Disabilities. (1) Purpose. An agency may with mental retardation, a severe
disability, the proposed regulations also appoint a person with mental retardation, a physical disability, or a psychiatric
person with a severe physical disability, or disability, provided the employee’s
provide agencies the discretionary a person with a psychiatric disability who,
authority to convert such a person non- appointment is converted to a career or
on the basis of authoritative medical and
competitively to the competitive other appropriate documentation submitted career-conditional appointment under
service, upon 2 years of satisfactory by or on his or her behalf, has been certified § 315.709;
service in a Schedule A excepted by the appointing agency, another Federal * * * * *

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Federal Register / Vol. 70, No. 7 / Tuesday, January 11, 2005 / Proposed Rules 1835

Subpart G—Conversion to Career or germination or seed number; et seq.), and issues Certificates of
Career-Conditional Employment From submission of new application data after Protection that provide intellectual
Other Types of Employment notice of allowance, but prior to property rights to developers of new
certificate issuance; recording any varieties of plants. A Certificate of
5. Revise § 315.709 to read as follows: revision, withdrawal, or revocation of Protection is awarded to an owner of a
§ 315.709 Appointment for Persons With an assignment; and protest to the variety after examination indicates that
Disabilities. issuance of a certificate. The allowance the variety is new, distinct from other
(a) Coverage. An employee appointed and issuance fee will be increased also varieties, genetically uniform, and stable
under § 213.3102(u) of this chapter may have to recover the costs of enhancing the through successive generations. The Act
his or her appointment converted to a career PVP program’s electronic archiving requires that reasonable fees be
or career-conditional appointment when he capabilities. Also, technical collected in order to maintain the
or she: amendments are proposed which would program. This action will add new fees
(1) Completes 2 or more years of revise or remove obsolete language. charged to users of plant variety
satisfactory service, without a break of more protection for administrative services.
DATES: Comments must be received on
than 30 days, under a nontemporary AMS estimates that the proposed rule
Schedule A appointment; or before February 10, 2005.
ADDRESSES: Interested persons are
will yield an additional $96,000 of new
(2) Is recommended for such conversion by
his or her supervisors; invited to submit comments concerning revenue in fiscal year (FY) 2006. The
(3) Meets all requirements and conditions costs to private and public business
this proposed rule. Comments should be
governing career and career-conditional entities will be proportional to their use
sent in triplicate to Dr. Paul M.
appointment except those requirements of the administrative services. The PVP
Zankowski, Commissioner, PVP Office,
concerning competitive selection from a program is a voluntary service, so any
Room 401, NAL Building, 10301
register and medical qualifications; and decision by developers to discontinue
(4) Is converted without a break in service Baltimore Avenue, Beltsville, MD
the use of plant variety protection will
of one workday. 20705–2351, telephone (301) 504–5518,
not hinder private and public entities
(b) Tenure on conversion. An employee fax (301) 504–5291, and should refer to
from marketing their varieties in
converted under paragraph (a) of this section the docket title and number located in
commercial markets.
becomes: the heading of this document. AMS regularly reviews its user-fee-
(1) A career-conditional employee, except Comments received will be available for
as provided in paragraph (b)(2) of this financed programs to determine their
public inspection at the same location, fiscal condition. In a recent review of
section; between the hours of 10 a.m. and 4 p.m.,
(2) A career employee if he or she has the PVP program, the cost analysis
Monday through Friday, except Federal indicated that there are a number of
completed 3 years of substantially
continuous service in a nontemporary holidays. administrative services for which there
appointment under § 213.3102(u) of this FOR FURTHER INFORMATION CONTACT: are no fees available to recover costs.
chapter, or has otherwise completed the Janice M. Strachan, USDA, AMS, AMS determined the new fees by
service requirement for career tenure, or is Science and Technology (S&T), PVP analyzing the costs for providing the
excepted from it by § 315.201(c). Office, 10301 Baltimore Avenue, NAL listed services, including salaries and
(c) Acquisition of competitive status. A Room 401, Beltsville, MD 20705–2351, materials.
person whose employment is converted to telephone (301) 504–5518, and fax (301) The PVP Advisory Board has been
career or career-conditional employment
under this section acquires a competitive
504–5291. informed of customer services for which
status automatically on conversion. SUPPLEMENTARY INFORMATION: the PVP Office is not reimbursed, and
consulted on new supplementary fees in
[FR Doc. 05–456 Filed 1–10–05; 8:45 am] I. Executive Order 12866 November 2001 and again in March
BILLING CODE 6325–39–P This proposed rule has been 2003. The Board recommended that new
determined to be not significant for the supplemental fees be put in place. This
purposes of Executive Order 12866, and proposed rule will make changes in the
DEPARTMENT OF AGRICULTURE therefore, has not been reviewed by the regulations to implement the
Office of Management and Budget supplemental fees.
Agricultural Marketing Service (OMB). Without the supplemental fees in FY
2006, the PVP Office revenues are
7 CFR Part 97 II. Regulatory Flexibility Act
projected at $1,496,000, operational
[Docket Number ST02–02]
Pursuant to requirements set forth in expenses are estimated at $1,614,720,
the Regulatory Flexibility Act (RFA) (5 and trust fund balances would be down
RIN # 0581–AC31 U.S.C. 601 et seq.), the AMS has to $966,458. On the other hand, if
considered the economic impact of this supplemental fees are established, the
Plant Variety Protection Office, action on small business entities. There trust fund balance would be $1,243,658
Supplemental Fees are more than 800 potential users of the at the end of FY 2006, which would
AGENCY: Agricultural Marketing Service, Plant Variety Protection (PVP) Office’s begin to replenish the program reserves.
USDA. service, of whom about 100 may file
applications in a given year. Some of III. Civil Justice Reform
ACTION: Proposed rule with request for
comments. these users are considered small This rule has been reviewed under
business entities under the criteria Executive Order 12988, Civil Justice
SUMMARY: The Agricultural Marketing established by the Small Business Reform. This action is not intended to
Service (AMS) proposes supplemental Administration (13 CFR 121.201). The have retroactive effect, nor will it
fees for the Plant Variety Protection AMS has determined that this action preempt any State or local laws,
(PVP) Office covering a variety of would not have a significant economic regulations, or policies, unless they
administrative services that are not impact on a substantial number of these present an irreconcilable conflict with
currently charged by the program. These small business entities. the proposed rule. There are no
include administrative service requests The PVP Office administers the PVP administrative procedures that must be
for: replenishment of seed low in Act of 1970, as amended (7 U.S.C. 2321 exhausted prior to any judicial

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