[Federal Register Volume 76, Number 126 (Thursday, June 30, 2011)]
[Proposed Rules]
[Pages 38326-38328]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-16272]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 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. 76, No. 126 / Thursday, June 30, 2011 / 
Proposed Rules  

[[Page 38326]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 338

RIN 3206-AL15


Qualification Requirements (General)

AGENCY: U.S. Office of Personnel Management.

ACTION: Proposed rule.

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SUMMARY: The U.S. Office of Personnel Management (OPM) is proposing to 
revise the regulations governing qualification requirements for 
appointment to a Federal position in the competitive service. The 
purpose of these proposed regulations is to update and clarify 
information regarding citizenship and age requirements, add new 
information concerning appealing an agency's qualification 
determination, retitle the Operating Manual: Qualification Standards 
for General Schedule Positions to include other pay plans or systems, 
and replace the Operating Manual with a Web site address for OPM's 
qualification requirements. These regulations also delete obsolete 
information regarding purchasing the Operating Manual from the 
Government Printing Office.

DATES: Submit comments on or before August 29, 2011.

ADDRESSES: You may submit your 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, fax, or deliver written comments to Angela 
Bailey, Deputy Associate Director, Recruitment and Hiring, Employee 
Services, U.S. Office of Personnel Management, 1900 E Street, NW., Room 
6566, Washington, DC 20415-9700; by e-mail to [email protected]; or by fax 
to (202) 606-2329.

FOR FURTHER INFORMATION CONTACT: Brenda B. Cook by telephone (202) 606-
0830, by fax (202) 606-2329, or by TTY (202) 418-3134.

SUPPLEMENTARY INFORMATION: The U.S. Office of Personnel Management 
(OPM) is proposing to revise part 338 of title 5, Code of Federal 
Regulations (CFR), Qualification Requirements (General). Part 338 
governs qualification requirements for appointment to a Federal 
position in the competitive service. These proposed regulations update 
and clarify information regarding citizenship and age requirements, add 
the Web site address for qualification requirements, add a new 
paragraph under subpart C of this part requiring agencies to establish 
an appeal procedure for applicants who want to appeal their 
qualification determinations, and delete obsolete information regarding 
the purchase of the Operating Manual from the Government Printing 
Office.
    Under Executive Order 11935, only U.S. citizens or persons who owe 
permanent allegiance to the United States are eligible for appointment 
to competitive service positions. To eliminate redundancy, OPM proposes 
to revise section 338.101 by eliminating paragraph (c) and 
incorporating information from paragraph (c) concerning the 
applicability of citizenship and permanent allegiance requirements to 
all competitive service appointments, into paragraph (a) of the same 
section. In addition, OPM is proposing to revise paragraph (a) to 
include a reference to title 8, United States Code, which describes 
individuals who qualify as U.S. citizens and persons who owe permanent 
allegiance to the United States.
    OPM is proposing to revise paragraph (b) of section 338.101 by 
citing section 213.3102(bb) as the authority for appointing non-
citizens. The reference to section 316.601 as the basis for such 
appointments will be deleted. Section 213.3102(bb) was established to 
cover the appointment of non-citizens and is a more appropriate 
citation than section 316.601. Specifically, section 213.3102(bb) gives 
OPM the authority to approve an excepted service appointment of a non-
citizen to a competitive service position when no qualified U.S. 
citizens or persons who owe permanent allegiance to the United States 
are available. Revised paragraph (b) of section 338.101 also clarifies 
restrictions against moving an appointed non-citizen to any other 
position without prior OPM approval.
    OPM is proposing to revise section 338.301 to change the title of 
the Operating Manual: Qualification Standards for General Schedule 
Positions to Operating Manual for Qualification Standards for General 
Schedule (or Equivalent) Positions. This title change is necessary to 
include white-collar positions that may be subject to the requirements 
of the Operating Manual even though these positions are not under the 
General Schedule (GS) pay plan or system. As of September 30, 2008, the 
Civilian Personnel Data File indicates approximately 353,195 white-
collar employees work under non-GS pay plans, Government-wide.
    Because the OPM Web site is the sole source for current information 
about qualification requirements and a Web address is necessary to give 
agencies access to the qualification standards and other requirements, 
OPM is proposing to add a new paragraph (a) to section 338.301 to 
include the Web site address for Operating Manual for Qualification 
Standards for General Schedule (or Equivalent) Positions and the Job 
Qualification System for Trades and Labor Occupations.
    Because hard copies of the Operating Manual are no longer printed, 
OPM is proposing to remove the reference to the Government Printing 
Office as a source for purchasing copies of the ``Operating Manual'' 
from section 338.301.
    OPM is proposing to add two new paragraphs (b) and (c) to section 
338.301. Proposed paragraph (b) establishes the agency's responsibility 
for ensuring applicants meet all qualification requirements before 
appointments or placements in any position in the competitive service. 
Proposed paragraph (c) refers agencies to 5 CFR part 339 of this 
subchapter for information about physical and medical qualifications. 
This cross-reference will ensure that agencies are aware of all 
qualification requirements, including medical or physical standards, 
where applicable.
    OPM is proposing to add section 338.302, a provision requiring 
agencies to prescribe a procedure for applicants who wish to appeal 
their qualification determination for a particular position under 5 CFR 
300.104(b) if OPM has

[[Page 38327]]

delegated examining authority to the agency.
    OPM is proposing to retitle section 338.601, from ``Prohibitions of 
maximum age-requirement'' to ``Maximum Age Requirements'' and include 
an exception to the maximum-entry-age requirement for veterans' 
preference eligibles. The Government has decided to acquiesce in a 
decision of the Merit Systems Protection Board (MSPB) in Isabella v. 
Department of State and Office of Personnel Management, 109 MSPR, 453 
(2008) (Isabella II); Isabella v. Department of State, 106 M.S.P.R. 333 
(2007) (Isabella I). In Isabella, the MSPB found that an agency 
violated the Veteran Employment Opportunities Act of 1998 (VEOA) 
because there was no demonstration that a maximum entry age was 
essential to the performance of the duties of the position to which the 
preference eligible applied. Having considered this decision, OPM has 
determined to adopt the view that when a qualified veterans' preference 
eligible applies for a position that imposes a maximum age requirement 
authorized by 5 U.S.C. 3307, the provisions of 5 U.S.C. 3312(a) require 
that the hiring authority must waive the maximum age requirement unless 
it has determined that such a requirement is essential to performance 
of the duties of the position.
    There are several steps an agency must follow when accepting 
applicants for a position with a maximum-entry-age requirement 
established by the agency under 5 U.S.C. 3307. The agency must first 
analyze the affected position to determine whether age is essential to 
the performance of duties of the position. If the agency decides that 
age is not essential to the duties of the position, then it must waive 
the maximum-entry-age requirement for veterans' preference eligible 
applicants. If the agency decides that age is essential to the duties 
of the position, the veterans' preference eligible applicants must meet 
the maximum-entry-age requirement. Applicants who are not preference 
eligibles must meet any maximum-entry-age requirement established by 
the agency under 5 U.S.C. 3307, in order to be eligible for 
appointment.
    OPM is proposing to add a new section 338.602 titled ``Minimum age 
requirements.'' This new section refers to section 551.601 of this 
chapter on minimum age requirements for Federal employment. This 
information will better inform agencies about this provision.

Executive Order 13563 and Executive Order 12866

    The Office of Management and Budget has reviewed this rule in 
accordance with E.O. 13563 and 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 338

    Government employees, Veterans.

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

    Accordingly, OPM proposes to revise title 5, Code of Federal 
Regulations, part 338 as follows:

PART 338--QUALIFICATION REQUIREMENTS (GENERAL)

    1. The authority citation for part 338 is revised to read as 
follows:

    Authority: 5 U.S.C. 3301, 3302, 3304, 3307, 3312, and 5105; E.O. 
10577, 3 CFR, 1954-1958 Comp., p. 218, E.O. 11935, 3 CFR, 1976 
Comp., p. 146.

Subpart A--Citizenship Requirements

    2. Revise Sec.  338.101 to read as follows:


Sec.  338.101  Citizenship.

    (a)(1) Except as noted in paragraph (b) of this section, only a 
United States (U.S.) citizen or a person who owes permanent allegiance 
to the U.S. may compete for an appointment and be appointed to a 
position in the competitive service. U.S. citizens and persons who owe 
permanent allegiance to the U.S. are described in subchapters I and III 
of chapter 12, title 8, U.S. Code.
    (2) Paragraph (a)(1) of this section applies to all appointments in 
the competitive service, including career; career-conditional; term and 
temporary appointments; reinstatements; transfers; as well as to other 
noncompetitive appointments; and conversions to career and career 
conditional appointments from other appointment types.
    (b) Unless the appointment is prohibited by statute, OPM may 
authorize an agency to appoint an individual who neither is a citizen 
nor owes permanent allegiance to the U.S. in rare cases under Sec.  
213.3102(bb) of this chapter when a qualified U.S. citizen or person 
who owes permanent allegiance to the U.S. is not available for the 
position. Once such individual is appointed pursuant to Sec.  
213.3102(bb), the agency is then precluded from using any other 
authority to place that individual in a different position in the 
competitive service, unless the agency, once again, obtains prior OPM 
approval.

 Subpart C--Consideration for Appointment

    3. Revise subpart C to read as follows:


Sec.  338.301  Competitive service appointments.

    (a) Applicants who meet all qualification requirements for 
competitive service positions in accordance with the Operating Manual 
for Qualification Standards for General Schedule (or Equivalent) 
Positions, the Job Qualification System for Trades and Labor 
Occupations, and other applicable provisions as appropriate may be 
considered for competitive service appointments. These manuals are 
available on OPM's Web site at http://www.opm.gov/qualifications/.
    (b) Agencies must ensure that applicants meet all applicable 
eligibility and qualification requirements for consideration and 
appointment to a competitive service position.
    (c) When applicable, applicants must meet the medical and physical 
requirements of the position in accordance with part 339 of this 
chapter.


Sec.  338.302  Appeal of qualification determinations.

    When OPM has delegated examining authority to an agency, the agency 
must establish a procedure for applicants to appeal their qualification 
determination when they apply for a position pursuant to a job 
opportunity announcement as set forth in 5 CFR 300.104(b). When OPM has 
delegated examining authority to an agency, applicants may not appeal 
to OPM.

Subpart F--Age Requirements

    4. Revise Sec.  338.601 to read as follows:


Sec.  338.601  Maximum age requirements.

    (a) Agencies may not set maximum-entry-age requirements for 
positions in the competitive service except as permitted by 5 U.S.C. 
3307(b)-(g).
    (b) All qualified applicants must meet the maximum-entry-age 
requirement established by the agency pursuant to 5 U.S.C. 3307(b)-(g) 
to be eligible for appointment to such positions.
    (c) Exception to maximum-entry-age requirements.
    (1) Preference eligibles. In order to determine whether to waive a 
maximum-entry-age requirement, an agency must first analyze the 
affected position to determine whether age is essential to the 
performance of the position.

[[Page 38328]]

    (i) Non-essential--If the agency determines that a maximum-entry-
age is not essential to the performance of the duties of the position, 
then the agency must waive the age requirement for qualified veterans' 
preference eligible applicants as prescribed by 5 U.S.C. 3312.
    (ii) Essential--If the agency determines that a maximum-entry-age 
is essential to the performance of the duties of the position, the 
veterans' preference eligible applicant must meet the maximum-entry-age 
requirement established by the agency under 5 U.S.C. 3307.
    5. Add Sec.  338.602 to read as follows:


Sec.  338.602  Minimum-entry-age requirements.

    Minimum-entry-age requirements for all Federal positions are 
prescribed in Sec.  551.601 of this chapter.

[FR Doc. 2011-16272 Filed 6-29-11; 8:45 am]
BILLING CODE 6325-38-P