[Federal Register Volume 74, Number 122 (Friday, June 26, 2009)]
[Rules and Regulations]
[Pages 30459-30462]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-15184]



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 Rules and Regulations
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  Federal Register / Vol. 74, No. 122 / Friday, June 26, 2009 / Rules 
and Regulations  

[[Page 30459]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 332

RIN 3206-AL13


Recruitment and Selection Through Competitive Examination

AGENCY: U.S. Office of Personnel Management.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The U.S. Office of Personnel Management (OPM) is issuing final 
regulations pertaining to recruitment and selection through the 
competitive examination process. The purpose of this rule is to clarify 
the distinction among objections, pass overs, and suitability 
determinations. OPM is also adopting two new definitions to further 
clarify the distinction between an objection and a pass over request. 
Additionally, OPM is removing an obsolete section in this part dealing 
with filling certain postmaster positions.

DATES: The final rule is effective on July 27, 2009.

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 [email protected].

SUPPLEMENTARY INFORMATION: On September 2, 2008, OPM published a 
proposed rule with request for comments in the Federal Register at 73 
FR 51245 to amend its regulations governing recruitment and selection 
through competitive examination, primarily to clarify the distinction 
among objections, pass over requests, and suitability determinations. 
OPM also proposed to add two new definitions, of ``objection'' and 
``pass over request,'' to further clarify the differences and 
relationship between them and to improve the readability of section 
332.102. In addition, OPM proposed to remove section 332.103 because it 
contained outdated information concerning filling positions in the U.S. 
Postal Service.

Background

    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 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 objection regulations 
and the suitability regulations were connected 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 an agency's objection (including its 
pass over requests) do not constitute suitability actions and that 
decisions on these objections are not suitability actions. 
Consequently, when an objection or pass over request is made, the 
regulation at 5 CFR 332.406 applies, and 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,

[[Page 30460]]

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 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)).
    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 pre-defined 
quality categories instead of being ranked in numeric score order. 
Veterans' preference is applied by listing preference 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 (Medical 
Qualification Determinations) constitutes a ``proper and adequate 
reason.'' In addition, OPM has reserved to itself the ability to set 
forth in its Delegated Examining Operations Handbook additional reasons 
that constitute ``proper and adequate'' reasons for objections.
    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, including 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 part 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

[[Page 30461]]

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 a 
material, intentional false statement or deception or fraud in 
examination or appointment, and the objection is sustained, 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.
    OPM is revising 5 CFR 332.406 to make it clear that the procedure 
for requesting objections is not part of the suitability process. OPM 
is also clarifying that an individual may not appeal an OPM or agency 
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).
    In section 332.102, OPM is adding two new definitions of 
``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. OPM is also updating the 
definitions of ``active military duty'' and ``certificate.''
    OPM is revising the definition of ``active military duty'' to 
reflect a recent change to this definition based on OPM's published 
final rule on October 29, 2008. On February 6, 2007, the Merit Systems 
Protection Board (MSPB) issued a decision in Edward Thomas Hesse v. 
Department of the Army (AT-3443-05-0936-I-1) that affects the 
eligibility criteria for veterans' preference based on a service-
connected disability under 5 U.S.C. 2108(2). On July 27, 2007, OPM 
issued an interim rule with request for comments (Federal Register at 
72 FR 41215) to amend the definition of ``active duty or active 
military duty'' for veterans' preference entitlement. On October 29, 
2008, OPM issued a final rule (Federal Register at 73 FR 64179) 
amending the definition of ``active duty or active military duty'' in 5 
CFR 211.102(f). The revised definition of ``active military duty'' in 
section 332.102 refers to 5 CFR 211.102(f) as the appropriate 
definition for the purpose of consistency.
    OPM is removing 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 a Government corporation of the executive branch of 
the Federal Government. The USPS subsequently established its own 
examining and hiring system.
    OPM received two written comments on the proposed rule. Because 
these comments from two agencies supported OPM's clarification and 
revisions of 5 CFR part 332, we are issuing the final rule with only a 
few minor changes in wording for clarity, including clarifying some 
references to objections and pass over requests so that they are more 
consistent with the way we have defined those terms (i.e., reflecting 
the fact that pass over requests are a subset of objections).

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.

U.S. Office of Personnel Management.
John Berry,
Director.

0
Accordingly, OPM is amending 5 CFR part 332 as follows:

PART 332--RECRUITMENT AND SELECTION THROUGH COMPETITIVE EXAMINATION

0
1. The authority citation for part 332 is revised to read as follows:

    Authority: 5 U.S.C. 1103, 1104, 1302, 2108, 3301, 3302, 3304, 
3312, 3317, 3318, 3319; E.O. 10577; 3 CFR, 1954-1958 Comp., p. 218; 
SOURCE: 33 FR 12426, Sept. 4, 1968, unless otherwise noted.

Subpart A--General Provisions

0
2. Revise Sec.  332.102 to read as follows:


Sec.  332.102  Definitions.

    In this part:
    Active military duty has the meaning given that term in 5 CFR 
211.102(f).
    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]

0
3. Remove Sec.  332.103.
* * * * *

Subpart D--Consideration for Appointment

0
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 to agencies the authority 
to adjudicate objections to eligibles, including pass over requests.
    (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 (including a 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. An agency is not required to consider 
an individual for a position when an objection to (including a request 
to pass over) the particular individual is sustained or granted. An 
objection, including a pass over request, may be sustained only if it 
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. In 
addition, reasons published by OPM in the Delegated Examining 
Operations Handbook constitute proper and adequate reasons to sustain 
an objection.
    (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

[[Page 30462]]

reasons is supported by the evidence submitted for the 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 
(including seeking 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 until a final ruling is made.
    (e) Applicability of paragraphs (c) and (d). 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 (in the event the 
objection is not sustained or the pass over request is denied) a 
position that could be filled by the individual against whom an 
objection or a pass over request has been filed.
    (f) Procedures for objections and pass overs. Agencies must follow 
the procedures for objecting to or requesting to pass over an eligible 
that are 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 pursuant to this part, 
including a decision to grant a pass over request, irrespective of the 
reason for the decision.

[FR Doc. E9-15184 Filed 6-25-09; 8:45 am]
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