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.

Proposed Rules Federal Register

51245 

Vol. 73, No. 170 

Tuesday, September 2, 2008 

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. 

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information is obsolete.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 


erowe on PROD1PC64 with PROPOSALS
51246 Federal Register / Vol. 73, No. 170 / Tuesday, September 2, 2008 / Proposed Rules 

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 jobrelated 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 serviceconnected 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 nonpreference 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 nonpreference 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 nonselection 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 


erowe on PROD1PC64 with PROPOSALS
Federal Register / Vol. 73, No. 170 / Tuesday, September 2, 2008 / Proposed Rules 51247 

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 § 332.102 to read as follows: 

§ 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 nonpreference eligible. 

§ 332.103 [Removed] 

3. Remove § 332.103. 

Subpart D—Consideration for 

Appointment 

4. Revise § 332.406 to read as follows: 

§ 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] 

BILLING CODE 6325–39–P 


erowe on PROD1PC64 with PROPOSALS