[Federal Register: September 2, 2008 (Volume 73, Number 170)]
[Proposed Rules]
[Page 51245-51247]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02se08-11]
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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.
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OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 332
RIN 3206-AL13
Recruitment and Selection Through Competitive Examination
AGENCY: Office of Personnel Management.
ACTION: Proposed rule.
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SUMMARY: The Office of Personnel Management (OPM) is proposing to amend
its regulations governing recruitment and selection through competitive
examination primarily to clarify the distinction among objections, pass
overs, and suitability determinations. OPM is also proposing to amend
the definition section of this part to make the regulations more
readable and to remove the section in this part dealing with filling
certain postmaster positions because the information is obsolete.
DATES: We will consider comments received on or before November 3,
2008.
ADDRESSES: You may submit comments through the Federal eRulemaking
Portal at: 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 rulemaking.
You may also send, deliver or fax comments to Angela Bailey, Deputy
Associate Director for Talent and Capacity Policy, U.S. Office of
Personnel Management, Room 6551, 1900 E Street, NW., Washington, DC
20415-9700; e-mail at employ@opm.gov; or fax at (202) 606-2329.
FOR FURTHER INFORMATION CONTACT: Ms. Linda Watson by telephone at (202)
606-0830; by fax at (202) 606-2329; by TTY at (202) 418-3134; or by e-
mail at linda.watson@opm.gov.
SUPPLEMENTARY INFORMATION: Pursuant to provisions codified in title 5,
United States Code (U.S.C.), and Executive Orders issued pursuant to
those provisions, Congress and the President have delegated to OPM
several authorities related to the recruitment and selection process
for individuals seeking competitive service positions in the Federal
Government. Under 5 U.S.C. 3318, Congress confers upon OPM the
authority to rule on any objection or pass over request filed by a
Federal agency seeking to fill vacancies for such positions. In recent
years, OPM has delegated examining authority to Federal agencies to
adjudicate most objections and pass over requests. OPM retains
exclusive authority to: (a) Make medical qualification determinations
pertaining to preference eligibles; and (b) grant or deny an agency's
pass over request of a preference eligible with a compensable service-
connected disability of 30 percent or more. Except for OPM's exclusive
authority, Federal agencies with delegated examining authority under 5
U.S.C. 1104(a)(2) have the authority to adjudicate objections and pass
over requests pertaining to applicants for positions in their agencies,
but do not have such authority with respect to positions elsewhere in
the Federal Government.
An objection is a request to remove a candidate from consideration
on a particular certificate, and a pass over request is an objection
filed against a preference eligible that results in the selection of a
non-preference eligible. (Throughout this discussion, the use of the
term ``objection'' in this document should be read to encompass pass
overs, even if pass overs are not explicitly mentioned). OPM
promulgated regulations in section 332.406 of title 5, Code of Federal
Regulations (CFR), in which it describes the circumstances under which
an objection will be sustained or a pass over request granted.
In addition to its authority for adjudicating objections and pass
overs, OPM is authorized to regulate the fitness of applicants for
competitive service positions and for career appointment in the Senior
Executive Service, as well as the conduct of employees in competitive
service and Senior Executive Service positions. OPM, exercising this
authority, published regulations governing suitability determinations,
which are located at 5 CFR part 731. As with objections and pass over
requests, OPM has delegated to Federal agencies the authority to make
most suitability determinations.
Although the statutory schemes related to suitability
determinations and pass overs/objections are separate and distinct from
each other, OPM has, in the recent past, unintentionally mingled the
two, possibly giving rise to the impression that the pass over
regulations and the suitability regulations were interconnected in some
way. The Merit Systems Protection Board's (MSPB) decisions in Edwards
v. Department of Justice, 86 MSPR 365 (2000) and 87 MSPR 518 (2001),
which, to some extent, erased the distinction between the two
regulatory schemes, led OPM to conclude that it was essential to
restore clarity to these two important and distinct features of the
Federal personnel system. To dispel any confusion that has been
created, OPM is proposing to revise this regulation to clarify that
neither an agency's objections nor its pass over requests constitute
suitability actions and that decisions on these objections or pass over
requests similarly are not suitability actions. Consequently, when an
objection or pass over request is made, the regulation at 5 CFR 332.406
applies, but the procedures set forth in 5 CFR part 731 do not apply.
OPM has also clarified its regulations in 5 CFR part 731 to ensure that
the intended distinction between the two procedures is understood and
maintained. See 73 FR 20149 (April 15, 2008). To demonstrate the basis
for the distinction between these two statutory schemes, a brief review
of each of these schemes is helpful.
Objections/Pass Overs
In general, agencies may select candidates for vacancies in the
competitive service in one of two methods--the traditional ``Rule of
Three'' method, in which an agency selects from the highest three
eligibles available for appointment, drawing from a list of candidates
who have been rated and ranked by numerical scores, or alternate
ranking and selection procedures, pursuant to which a category rating
system for evaluating candidates is established. The differences are
straightforward.
When OPM or an agency's delegated examining office (DEO) uses the
traditional ``Rule of Three'' ranking and selection procedures, the
selecting
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official requests a list of eligible candidates who meet the minimum
qualification requirements. OPM or the DEO is required to provide
either a list of all qualified candidates, appropriately rated and
ranked, or enough names from the top of a register of qualified
candidates, appropriately rated and ranked, to permit an agency to
consider at least three candidates for appointment with respect to each
vacancy that the agency intends to fill (5 U.S.C. 3317(a)). Under this
procedure, eligible candidates are assigned numerical scores including
veterans' preference points of 5 points or 10 points, as applicable (5
U.S.C. 3309, 3313). An appointing official must select from the highest
three candidates available for appointment on the certificate furnished
by OPM or the DEO, except as discussed below (5 U.S.C. 3318(a)). This
ranking and selection procedure is often referred to as the ``Rule of
Three.''
When an agency uses a category-based rating method to assess, rate,
and rank job applicants for positions filled through the competitive
examination process, applicants who meet the minimum qualification
requirements are ranked by being placed in two or more predefined
quality categories instead of being ranked in numeric score order.
Veterans' preference is applied by listing preferences eligibles ahead
of non-preference eligibles within the same quality category in which
they were assigned based upon the job-related assessment tool(s). No
points are assigned. Qualified preference eligibles with a compensable
service-connected disability of 30-percent or more and those with a
compensable service-connected disability of at least 10-percent but
less than 30-percent are placed at the top of the highest quality
category (except with respect to scientific or professional positions
at or above the GS-9 level), regardless of the quality category in
which they would be placed based upon their examination results. Under
category rating, an appointing official may select from any of the
candidates in the highest quality category (or, if fewer than three
candidates have been assigned to the highest category, from a merged
category consisting of the highest and the second highest quality
categories), except that, generally, all the preference eligible
choices must be exhausted before an agency may select a non-preference
eligible candidate (5 U.S.C. 3319).
Congress gave agencies the right to object to any candidate for
employment whose name appears on a certificate, whether the agency is
using the traditional ``Rule of Three'' or category rating. The
procedures are the same, regardless of the method of selection. As
prescribed in 5 U.S.C. 3318(a), OPM or an agency with delegated
examining authority may sustain an objection that is based on a
``proper and adequate reason under regulations prescribed by the Office
(OPM).'' To ensure that all applicants for competitive service
positions possess the necessary health, character, and ability for the
employment sought, OPM has determined that any of the reasons set forth
as criteria for making suitability decisions in 5 CFR part 731 or as
bases for disqualification by OPM in 5 CFR part 339 constitutes a
``proper and adequate reason.'' In addition, OPM has determined to
reserve to itself the ability to set forth in its Delegated Examining
Operations Handbook additional reasons that constitute ``proper and
adequate'' reasons for objections in OPM's view.
As previously indicated, a request for a pass over is a specific
type of objection. As with any objection, an agency may not pass over a
preference eligible (with respect to a Rule-of-Three selection process)
or select a non-preference eligible ahead of a preference eligible in
the same quality category (with respect to a category rating selection
process) unless OPM or the appropriate DEO grants the agency's pass
over request under 5 U.S.C. 3318(b)(1). See also 5 U.S.C. 3319(c)(2).
When an agency seeks to pass over a preference eligible candidate who
is a 30 percent or more compensably disabled veteran, only OPM
possesses the authority to adjudicate the agency's pass over request.
The standard for adjudicating a pass over request is identical to the
standard for adjudicating any other objection. Consequently, an
agency's pass over request will be granted if that request is based on
``proper and adequate reasons,'' including those reasons derived from 5
CFR part 339 or 731.
There is no statutory or regulatory right to appeal from a decision
sustaining an objection or granting a pass over request. For that
reason, an individual has no right of appeal to MSPB from an OPM,
agency or DEO decision to sustain an objection or grant a pass over
request, regardless of the reason for the decision.
Suitability Actions
In 5 U.S.C. 7301, Congress conferred upon the President the
authority to prescribe regulations for the conduct of employees in the
Executive Branch. In addition, pursuant to 5 U.S.C. 3301, the President
may ``(1) prescribe such regulations for the admission of individuals
into the civil service in the executive branch as will best promote the
efficiency of that service; [and] (2) ascertain the fitness of
applicants as to age, health, character, knowledge, and ability for the
employment sought. * * *'' Executive Order 10577 directs OPM to examine
``suitability'' for competitive Federal employment.
Pursuant to 5 CFR 731, OPM, an agency, or the DEO, as appropriate,
may cancel an individual's eligibility, remove an individual from
Federal employment, and/or debar an individual from future Federal
employment when it determines the action will protect the integrity or
promote the efficiency of the civil service. A non-selection (e.g.,
objection or pass over pursuant to 5 CFR part 332) for a specific
position, however, is not a suitability action even if the non-
selection is based on reasons set forth in 5 CFR 731.202(b).
Prior to taking a suitability action, OPM or an agency with
delegated authority must notify the applicant, appointee, or employee
in writing of the proposed action and must specify the reasons for this
action. Under 5 CFR 731.302 and 731.402, the notice must also include
information on the individual's right to answer to the notice in
writing. After considering the answer of the individual, if any, OPM or
an agency with delegated authority then renders a final decision. In 5
CFR 731.501, an individual against whom a suitability action has been
taken is given the right of appeal to MSPB.
In light of these two separate and distinct statutory and
regulatory schemes, an agency that wishes, for reasons set forth in 5
CFR 731.202(b), not to appoint an individual on a certificate has two
options. First, the agency may make a suitability determination under 5
CFR part 731 with respect to the individual. Alternatively, the agency
may object to or request to pass over the candidate pursuant to 5 CFR
332.406. Under this latter authority, an agency may choose not to
appoint a candidate if its objection is sustained or its pass over
request is granted. An agency may pursue either route, but must satisfy
the standards applicable to the chosen procedure. It is permissible for
an agency to object or request to pass over a candidate on a
certificate of eligibles and then, if the objection is sustained or the
pass over request is granted, to refer the candidate's application for
suitability review and adjudication under 5 CFR part 731. When an
agency objects to an individual on the basis of material, intentional
false statement or
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deception or fraud in examination or appointment, and the objection is
sustained, however, an agency must also refer the candidate's
application to OPM for any suitability action that may be warranted,
because of the significance of these factors and to ensure uniformity
throughout the Federal Government.
In this proposed regulation, OPM proposes to add the definitions
for ``objection'' and ``pass over request'' to clarify the process that
applies to objections and pass over requests and distinguish that
process from the suitability process and to update the definitions for
``active military duty'' and ``certificate'' in 5 CFR 332.102.
OPM proposes to revise 5 CFR 332.406 to make it clear that the
procedure for requesting objections and pass overs is not part of the
suitability process. OPM also clarifies that an individual may not
appeal an OPM or agency's decision to sustain an objection or pass over
request to MSPB under 5 CFR part 731, even if the decision is based on
reasons set forth in 5 CFR 731.202(b).
OPM also proposes to remove 5 CFR 332.103, Filling certain
postmaster positions. This section is obsolete due to the passage of
Public Law 91-375, The Postal Reorganization Act (Act). The Act
transformed the former Post Office Department into the United States
Postal Service (USPS) and made it an independent establishment of the
executive branch of the Federal Government. USPS subsequently
established its own examining and hiring system, while retaining the
Civil Service retirement system.
E.O. 12866, Regulatory Review
This rule has been reviewed by the Office of Management and Budget
in accordance with Executive Order 12866.
Regulatory Flexibility Act
I certify that these regulations will not have a significant
economic impact on a substantial number of small entities because they
would apply only to Federal agencies and employees.
List of Subjects in 5 CFR Part 332
Government employees.
Office of Personnel Management.
Michael W. Hager,
Acting Director.
Accordingly, OPM proposes to amend 5 CFR part 332 as follows:
PART 332--RECRUITMENT AND SELECTION THROUGH COMPETITIVE EXAMINATION
1. The authority citation for part 332 is revised as follows:
Authority: 5 U.S.C. 1103, 1104, 1302, 3301, 3302, 3304, 3312,
3317, 3318, 3319; E.O. 10577, 3 CFR, 1954-1958 Comp., p. 218.
Subpart A--General Provisions
2. Revise Sec. 332.102 to read as follows:
Sec. 332.102 Definitions.
In this part:
Active military duty means active duty in full pay status in the
Armed Forces of the United States, including an initial period of
active duty for training, as defined in Chapter 1 of title 38, U.S.
Code.
Certificate means a list of eligibles from which an appointing
officer selects one or more applicants for appointment.
Objection means an agency's request to remove a candidate from
consideration on a particular certificate.
Pass over request means an objection filed against a preference
eligible that results in the selection of a non-preference eligible.
Sec. 332.103 [Removed]
3. Remove Sec. 332.103.
Subpart D--Consideration for Appointment
4. Revise Sec. 332.406 to read as follows:
Sec. 332.406 Objections to eligibles.
(a) Delegated authority. Except as specified in paragraphs (a)(1)
and (a)(2) of this section, OPM has delegated the authority to
adjudicate objections to eligibles, including pass over requests, to
Federal agencies.
(1) OPM retains exclusive authority to approve the sufficiency of
an agency's request to pass over preference eligibles who are thirty
percent (30%) or more compensably disabled. Such persons have the
right, in accordance with 5 U.S.C. 3318, to respond to the pass over
request before OPM makes a final decision.
(2) OPM also retains the exclusive authority to approve the
sufficiency of an agency's reasons to medically disqualify or medically
pass over a preference eligible or disabled veteran in certain
circumstances, in accordance with part 339 of this chapter.
(3) An agency must refer any objection or pass over request that is
based on material, intentional false statement or deception or fraud in
examination or appointment to OPM for a suitability action where
warranted, under part 731 of this chapter.
(b) Standard for objections or pass overs. An agency is not
required to consider an individual for a position when an objection to
or request to pass over the particular individual is sustained or
granted. An objection, including a pass over request, may be sustained
only if the objection is based on a proper and adequate reason. The
reasons set forth for disqualification by OPM in part 339 of this
chapter constitute proper and adequate reasons to sustain an objection.
Similarly, the criteria for making suitability determinations in part
731 of this chapter constitute proper and adequate reasons to sustain
an objection or grant a pass over request. In addition, reasons
published by OPM in the Delegated Examining Operations Handbook,
constitute proper and adequate reasons to sustain an objection or grant
a pass over request.
(c) Sufficiency of the reasons for a pass over. Subject to the
exception set forth in paragraph (e) of this section, an agency may not
pass over a preference eligible to select a non-preference eligible
unless OPM or an agency with delegated authority also makes a
determination that the sufficiency of the reasons is supported by the
evidence submitted for a pass over request.
(d) Agency's obligation while request for objection is pending.
Subject to the exception set forth in paragraph (e) of this section, if
an agency makes an objection against an applicant for a position, or
seeks to pass over the applicant, and the individual that the agency
wishes to select would be within reach of selection only if the
objection is sustained, or the pass over granted, that agency may not
make a selection for the position.
(e) Applicability of paragraphs (c) and (d) of this section.
Paragraphs (c) and (d) of this section do not apply if the agency has
more than one position to fill from the same certificate and holds open
a position that the individual against whom an objection has been
filed, or a pass over request made, could fill, in the event that the
objection is not sustained or the pass over request is denied.
(f) Procedures for objections and pass overs. Agencies must follow
the procedures for objecting to or requesting to pass over an eligible
published by OPM in the Delegated Examining Operations Handbook.
(g) No appeal rights to Merit Systems Protection Board (MSPB). An
individual may not appeal to the MSPB a decision by OPM or an agency
with delegated authority to sustain an objection or grant a pass over
request pursuant to this part irrespective of the reason for the
decision.
[FR Doc. E8-20272 Filed 8-29-08; 8:45 am]
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