[Federal Register Volume 73, Number 170 (Tuesday, September 2, 2008)]
[Proposed Rules]
[Pages 51245-51247]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-20272]


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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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Federal Register / Vol. 73, No. 170 / Tuesday, September 2, 2008 / 
Proposed Rules

[[Page 51245]]



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certain postmaster positions because the information is obsolete.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 <a href="/cdn-cgi/l/email-protection#b5d0d8c5d9daccf5dac5d89bd2dac3"><span class="__cf_email__" data-cfemail="086d657864677148677865266f677e">[email protected]</span></a>; 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 <a href="/cdn-cgi/l/email-protection#f79b9e999396d9809683849899b798879ad9909881"><span class="__cf_email__" data-cfemail="fa9693949e9bd48d9b8e899594ba958a97d49d958c">[email protected]</span></a>.

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

[[Page 51246]]

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

[[Page 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 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]
BILLING CODE 6325-39-P


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