Proposed Rule2023-15374
Recruitment and Selection Through Competitive Examination, and Employment in the Excepted Service (Rule of Many)
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
July 21, 2023
Issuing agencies
Personnel Management Office
Abstract
The Office of Personnel Management (OPM) is proposing regulations to implement changes authorized by the National Defense Authorization Act (NDAA) for Fiscal Year 2019 governing the selection of candidates from competitive lists of those who are eligible. These changes will provide expanded flexibility to agencies in the selection of candidates under delegated examining procedures. These changes also affect how agencies select candidates for excepted service appointments.
Full Text
<html>
<head>
<title>Federal Register, Volume 88 Issue 139 (Friday, July 21, 2023)</title>
</head>
<body><pre>
[Federal Register Volume 88, Number 139 (Friday, July 21, 2023)]
[Proposed Rules]
[Pages 47059-47068]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-15374]
========================================================================
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.
========================================================================
Federal Register / Vol. 88 , No. 139 / Friday, July 21, 2023 /
Proposed Rules
[[Page 47059]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Parts 302, 332, and 337
[Docket ID: OPM-2023-0015]
RIN 3206-AN80
Recruitment and Selection Through Competitive Examination, and
Employment in the Excepted Service (Rule of Many)
AGENCY: Office of Personnel Management.
ACTION: Proposed rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: The Office of Personnel Management (OPM) is proposing
regulations to implement changes authorized by the National Defense
Authorization Act (NDAA) for Fiscal Year 2019 governing the selection
of candidates from competitive lists of those who are eligible. These
changes will provide expanded flexibility to agencies in the selection
of candidates under delegated examining procedures. These changes also
affect how agencies select candidates for excepted service
appointments.
DATES: Comments must be received on or before September 19, 2023.
ADDRESSES: You may submit comments, identified by Regulation
Identification Number (RIN) ``3206-AN80'' using any of the following
methods:
Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the
instructions for submitting comments. All submissions received through
the Portal must include the agency name and docket number or Regulation
Identification Number (RIN) for this rulemaking.
Email: <a href="/cdn-cgi/l/email-protection#acc9c1dcc0c3d5ecc3dcc182cbc3da"><span class="__cf_email__" data-cfemail="34515944585b4d745b44591a535b42">[email protected]</span></a>. Include ``RIN 3206-AN80, Recruitment and
Selection'' in the subject line of the message.
Fax: (202) 606-4430.
Mail: Kimberly A. Holden, Deputy Associate Director for Talent
Acquisition, Classification, and Veterans Programs, U.S. Office of
Personnel Management, Room 6551, 1900 E Street NW, Washington, DC
20415-9700.
FOR FURTHER INFORMATION CONTACT: Roseanna Ciarlante by telephone at
(202) 936-3282 or Katika Floyd by telephone at (202) 606-0960; by email
at <a href="/cdn-cgi/l/email-protection#bfdad2cfd3d0c6ffd0cfd291d8d0c9"><span class="__cf_email__" data-cfemail="7d18100d1112043d120d10531a120b">[email protected]</span></a>; by fax at (202) 606-4430; or by TTY at (202) 418-
3134.
SUPPLEMENTARY INFORMATION:
Background
The proposed rule is written for the immediate audience of Federal
agency human resources practitioners and Federal agency hiring
officials, who will implement the rules. For reference, many of the
terms and concepts used and referenced below are defined in OPM's
Delegated Examining Operations Handbook (DEOH), and its appendices,
available at <a href="https://www.opm.gov/policy-data-oversight/hiring-information/competitive-hiring/deo_handbook.pdf">https://www.opm.gov/policy-data-oversight/hiring-information/competitive-hiring/deo_handbook.pdf</a>. The DEOH handbook also
provides additional context.
The Federal civilian workforce consists of three categories of
service: the competitive service, the excepted service, and the Senior
Executive Service. The main differences between the three classes of
service are: the manner in which candidates apply and are selected for
jobs, the qualifications of the position being filled, the opportunity
for appointees to move within or between the three classes of Federal
service, and the rights governing appeal and redress options for
incumbents of these positions. Each class of service (and its
particular employment system(s)) is governed by different laws and
regulations.
The competitive service consists of all civil service positions in
the executive branch of the Federal Government with some exceptions,
which are defined in section 2102 of title 5, United States Code
(U.S.C.). Four categories of appointments comprise the competitive
service: those subject to delegated examining procedures; those filled
through promotion and internal placement (i.e., merit promotion)
procedures in accordance with 5 Code of Federal Regulations (CFR) part
335; those filled on a non-competitive basis in accordance with 5 CFR
part 315 subparts F and G; and those filled under direct hire authority
in accordance with 5 CFR part 337 subpart B. These proposed regulations
impact positions filled in the competitive service using delegated
examining procedures.
The Director of OPM has delegated to agency heads the authority
delegated to the Director by the President to conduct competitive
examinations for positions in the competitive service. [5 U.S.C. 1104].
Each agency with this delegated authority is required to enter into a
written agreement with OPM. Agencies with delegated examining authority
may fill competitive civil service jobs with applicants from outside
the Federal workforce; Federal employees who do not have competitive
service status (i.e., temporary or term employees, and individuals who
hold or held an excepted service position which did not provide for
conversion to the competitive service); or Federal employees with
competitive service status (i.e., career or career-conditional
employees).
Agencies use delegated examining (also called ``competitive
examining'') procedures to fill positions in the competitive service
for which any U.S. citizen may apply. Competitive examining supports
Federal merit system principles by promoting recruitment from all
segments of society, fair and open competition among job-seekers, and
selection based on an applicant's competencies or knowledge, skills,
and abilities. OPM maintains oversight of its delegated examining
authority to ensure agencies apply their delegated authority in
accordance with the merit system principles in 5 U.S.C. 2301.
There are three stages to the competitive service Federal hiring
process: the assessment process (i.e., the rating and ranking of
applicants and application of veterans' preference); the certification
process (i.e., the process through which applicants are listed on a
certificate of eligible candidates (``certificate of eligibles'') in
order of their assessed scores, adjusted for veterans' preference); and
the selection process (i.e., the process for choosing among applicants
based on their numerical rankings in accordance with veterans'
preference requirements).
Filling Jobs in the Competitive Service
Rule of Three
For readers not familiar with delegated examining, traditionally,
applicants for Federal jobs in the
[[Page 47060]]
competitive service are assigned numerical scores (including veterans'
preference points, if applicable, for preference eligible veterans),
listed in rank-order, and considered for selection based on the ``rule
of three.'' The rule of three requires that each selection must be made
from among the highest three candidates on the certificate with the
condition that a hiring official cannot select a non-preference
eligible candidate over a preference eligible veteran (i.e., an
individual who served in the U.S. Armed Forces, or a relative of the
individual, and meets certain statutory criteria, making the individual
eligible for an advantage in Federal hiring over those who did not
serve or do not meet the statutory criteria) with an equal or higher
ranking, unless the agency follows the procedures for formally passing
over or objecting to the preference eligible veteran. Under the rule of
three, preference eligible candidates (or ``eligibles'') are given 0,
5, or 10 points, which are added to their passing score on an
assessment. Individuals with 0 points added still have an advantage
over non-preference eligible candidates with an equal or lower score.
[5 U.S.C. 3318(a); 5 CFR part 332]. Numerical ranking is appropriate
when a hiring agency needs to make granular distinctions between
applicants; i.e., an individual with a score of 97 (out of a 100
possible points) is deemed more qualified than an applicant with a
score of 96 or lower.
Category Rating
On June 15, 2004, OPM issued final regulations which provided
agencies with increased flexibility in assessing applicants using
alternative (category-based) rating and selection procedures rather
than individual numerical ratings. This flexibility is known as
``category rating'' (see 5 CFR part 337, subpart C). Under category
rating procedures, in lieu of numerical ranking, applicants are
assessed and placed into two or more pre-defined quality categories,
with preference eligible veterans listed above non-preference eligible
veterans in each category to which the applicants are assessed.
Veterans who have a compensable service-connected disability of at
least 10 percent must be listed in the highest quality category, except
when the position being filled is scientific or professional at the GS-
9 grade level or higher. Hiring officials may select from applicants in
the highest quality category provided that any preference eligible
veteran must be considered before a non-preference eligible applicant.
A hiring official cannot select a non-preference eligible veteran over
a preference eligible veteran without going through the formal
procedures for passing over or objecting to the preference eligible
veteran. [5 U.S.C. 3319; 5 CFR part 337, subpart C.] Category rating is
appropriate when the hiring agency does not need to make such fine
distinctions among applicants as is made using numerical ranking
procedures (i.e., all applicants placed in a particular category are
deemed equally qualified). Category rating gives selecting officials
potentially more applicants to choose from because all applicants in a
given category are equally qualified: hiring officials are not limited
to selecting from only the three highest rated applicants.
Filling Jobs in the Excepted Service
By definition, the excepted service consists of those civil service
positions which have been excepted from certain requirements of the
competitive service or the Senior Executive Service. [5 U.S.C. 2103].
Positions may be excepted from title 5 U.S.C. entirely, or from limited
portions of title 5 U.S.C., e.g., excepted from public notice or
selection requirements, or from classification and pay otherwise
required in accordance with 5 U.S.C. chapter 51. The reasons for and
scope of the exceptions vary, depending on the circumstances
surrounding the exception and the authority for the exception.
When filling a position in the excepted service, the hiring agency
must follow the procedures in 5 CFR parts 213 and 302. Under these
provisions, agencies have more flexibility when assessing, rating and
ranking, and selecting eligible applicants than they do under
competitive examining. Agencies can:
<bullet> Use a numerical ranking procedure similar to the rule of
three,
<bullet> Place eligible applicants into preference categories based
on their veterans' preference status (i.e., in descending order from 30
percent or more disabled veterans (CPS); disabled veterans with at
least a 10 percent but less than 30 percent disability (CP); less than
10 percent disabled veterans (XP); eligible parents and widows and
widowers of a disabled veteran or a veteran killed on active duty (XP-
derived); veterans who served during certain periods specified in
statute or by the President or who received an armed forces
expeditionary medal (TP); and sole survivor veterans pursuant to the
Hubbard Act (SSP); \1\ or
---------------------------------------------------------------------------
\1\ Veterans' preference codes, e.g., ``TP,'' are a shorthand
reference used in competitive examinations. Veteran's preference is
recognized by adding points to the veteran's numerical score. CPS-10
point 30 percent or more disabled veteran; CP-10 point at least 10
percent disabled, but less than 30 percent, disabled veteran; XP-10
point other disabled veteran and those with derived preference; TP-5
point preference; SSP-0-point sole survivorship preference; and NV-
non-veteran/non-preference.
---------------------------------------------------------------------------
<bullet> Use an agency-developed method that provides preference-
eligible veterans with at least as much preference as they would
receive under the other two methods. Agencies oftentimes use their
competitive service category rating process in conjunction with this
last option.
Introduction
The NDAA for Fiscal Year 2019 (or ``the Act'') authorizes changes
governing the selection of candidates from competitive lists of those
who are eligible. Such lists are also known as delegated examining
certificates. The Act eliminates the ``rule of three'' in numerical
rating and ranking, which required that, for each selection,
consideration was limited to the top three candidates on the
certificate. Instead, the Act authorizes agencies to certify a
``sufficient number'' of names, not less than three, from the top of
the appropriate register or list of eligible candidates, to be
considered for selection, using a cut-off score \2\ or other mechanism
established by OPM (described below), known as the ``rule of many.''
The Act also affects how agencies may make selections under 5 CFR part
302, Employment in the Excepted Service.
---------------------------------------------------------------------------
\2\ A cut-off score is an established score used to filter out
unqualified candidates on any particular test or assessment. For
purposes of this proposed rule, a cut-off score is used to reflect a
sub-group of qualified applicants who demonstrated, through the
assessment, they are highly qualified and can be successful in the
position.
---------------------------------------------------------------------------
The proposed rule, called the ``rule of many,'' encompasses the
advantages of both ``rule of three'' and category rating procedures,
allowing the hiring agency to make finer distinctions among applicants
based on their relative qualifications for the position being filled,
while at the same time expanding the range of candidates from which a
hiring manager may make a selection. Under the rule of many. a hiring
manager is not limited to choosing from among only the three highest
applicants to fill each vacancy.
The Act does not change other requirements of delegated examining
including public notice and the application of veterans' preference in
competitive examining--veterans are still granted preference points
under ``rule of many'' numerical rating procedures and continue to be
entitled to selection preference over non-
[[Page 47061]]
preference eligible candidates with the same or a lower numerical score
unless the requirements for passing over a preference eligible are
satisfied.
Certification Procedures Using Numerical Rating
The Act requires OPM to prescribe regulations for the
administration of the ``rule of many'' numerical rating procedure,
which may include cut-off scores. In considering the types of
mechanisms that may be appropriate for this use, OPM reviewed candidate
assessment and referral procedures when using rank-ordered selection
\3\ under competitive examining. OPM identified four approaches that
can be reasonably and practically incorporated into existing processes.
OPM proposes that agencies use one of the following ways for
determining the number of applicants referred for selection:
---------------------------------------------------------------------------
\3\ Rank-order selection ranks applicants from highest score to
lowest score based on their assessment results including veterans'
preference points, and selections occur on a top-down basis.
---------------------------------------------------------------------------
1. A cut-off score based on the assessment(s) \4\ used, supported
by job analysis data. This referral mechanism involves establishing a
cut-off, or minimum, score using test measurement experts knowledgeable
about the assessment(s) used. This score should reflect a sub-group of
qualified applicants who demonstrated, through the assessment, that
they are highly qualified and can be successful in the position.
---------------------------------------------------------------------------
\4\ A sample of the most common assessment tools used in the
Federal Government may be found in chapter 2 of the Delegated
Examining Operations Handbook.
---------------------------------------------------------------------------
2. A cut-off score based on business necessity; for example, to
keep the number of applicants manageable for costly or labor-intensive
assessments such as structured interviews. This way of referring
applicants involves establishing a cut-off, or minimum, score that
results in identifying an appropriate number of applicants to move
forward in the hiring process based on the business needs of the
agency, taking into consideration the resources available. This
mechanism is also useful when test measurement expertise is not
available.
3. A set number of the highest ranked eligible applicants, for
example, the top 10 names. This referral mechanism involves
establishing a number of applicants to refer from the top of the ranked
list of applicants.
4. A percentage of the highest ranked eligible applicants; for
example, the top 10 percent will be referred for selection. This
referral mechanism involves establishing a percentage of applicants to
refer from the top of the ranked list of applicants.
When using a set number of applicants or top percentage of eligible
applicants, all applicants with the same score as the last applicant in
the cut will also be referred. For example, if using the top 10
eligible applicants and the 10th applicant has a score of 96.0, then
all applicants scoring 96.0 will be referred.
In selecting an appropriate mechanism, agencies should consider the
number of positions to be filled, the assessment(s) used, historical
applicant data, current labor market conditions, and other factors
appropriate for the hiring action. Agencies should document their
decision-making in the case files sufficient to allow for
reconstruction or third-party review of the decision. This should
include the data and factors used in making the decision.
Each agency may choose which methodology it will use to certify a
sufficient number of candidates to allow them to consider at least
three candidates for each vacancy. The hiring agency must decide the
approach, or mechanism, it will use before announcing the vacancy and
must identify the methodology in the job opportunity announcement.
Additionally, the approach used must be clearly documented in the
examining case file and available for reconstruction or third-party
review. OPM is proposing to amend 5 CFR 332.402 to include these
requirements.
Under this proposal, eligible applicants are ranked in score order,
including veterans' preference points, with veterans' preference
breaking ties in scores, and then the previously-chosen mechanism is
applied to create the certificate of eligibles. For example, a
preference eligible with a rating of 98XP (10-point veteran) \5\ is
listed ahead of a preference eligible with 98TP (5-point veteran).
Similarly, a preference eligible with a rating of 98TP is listed ahead
of a non-preference eligible with a score of 98NV (non-veteran/non-
preference veteran). Compensably disabled preference eligibles (CPS and
CP veterans) \6\ go to the top of the certificate of eligibles,
regardless of numerical rating and ahead of all other eligibles, except
when certifying for scientific and professional positions \7\ at the
GS-9 grade level and above in accordance with 5 U.S.C. 3313.
---------------------------------------------------------------------------
\5\ See note 1, above, for an explanation of veterans preference
codes.
\6\ See note 1, above, for an explanation of veterans preference
codes.
\7\ Professional and scientific positions are identified in the
OPM publication Handbook of Occupational Groups and Families. For a
list of professional and scientific positions, see Appendix K of the
Delegated Examining Operations Handbook.
---------------------------------------------------------------------------
Using the rule of many procedures will occur as the final step
before certification. Applicants will have already applied, been
reviewed and assessed for qualifications, assessed for rating and
ranking purposes and have a final rating. If a pass/fail assessment(s)
is used, any applicant who fails to meet the passing grade of an
assessment is no longer eligible, including those with priority or
preference, and, therefore, will not be certified or referred for
selection consideration.
It should be noted that delegated examining certificates issued
under rule of many procedures may be shared with other agencies
consistent with the Competitive Service Act requirements. See 83 FR
5335.
Selection Procedures Using Numerical Rating
As provided in 5 U.S.C. 3318(a), OPM is proposing to revise 5 CFR
332.404 to change selection procedures from requiring that each
selection must be made from the top three candidates (the ``rule of
three'') to state that a selecting official may select any eligible
candidate on the certificate of eligibles. However, under delegated
examining rules, a selecting official may not pass over a preference
eligible veteran to select a lower ranked non-preference eligible on
the certificate unless there are reasons for passing over the
preference eligible and the agency has complied with the pass-over
procedures at 5 U.S.C. 3318(c). OPM notes that the ``three
consideration rule'' at 5 CFR 332.405 may be used to remove an eligible
candidate (to include preference eligibles) from the certificate who
has received three bona fide considerations, as described in the next
section.
The following is an example of a certificate of eligibles ranked by
numerical ratings and veterans' preference under the proposed rule of
many. In this example, the agency established a cut-off score of 95.0
based on the assessment used for the position. Candidates with the same
score are ranked in veterans' preference order.\8\
---------------------------------------------------------------------------
\8\ CPS-10 point 30 percent or more disabled veteran and CP-10
point at least 10 percent disabled, but less than 30 percent,
disabled veteran; XP-10 point other disabled veteran and those with
derived preference; TP-5 point preference; SSP-0-point sole
survivorship preference; and NV-non-veteran/non-preference.
[[Page 47062]]
Certificate of Eligibles
------------------------------------------------------------------------
Score/ veterans'
Candidate preference (VP) Action
------------------------------------------------------------------------
1................... 98.0 TP................
2................... 96.0 XP................
3................... 96.0 NV................
4................... 95.0 TP................
5................... 95.0 TP................
6................... 95.0 NV................
------------------------------------------------------------------------
In this example, 6 candidates are eligible for consideration on the
certificate of eligibles. Any of the 4 preference eligible candidates
(candidates 1, 2, 4, or 5) may be selected. Under the rule of many
procedures, the agency is not limited to considering the top three
candidates, nor does the agency have to consider candidates in groups
of three. The two non-preference eligibles may not be selected without
satisfying pass-over requirements while there are higher ranked
veterans' preference candidates available on the certificate. If the
agency is filling multiple positions, a possible scenario may look like
the below certificate where the first preference eligible declined and
the second was selected:
Certificate of Eligibles
------------------------------------------------------------------------
Candidate Score/VP Action
------------------------------------------------------------------------
1................... 98.0 TP................ Declined.
2................... 96.0 XP................ Selected.
3................... 96.0 NV................
4................... 95.0 TP................
5................... 95.0 TP................
6................... 95.0 NV................
------------------------------------------------------------------------
For the next vacancy, using the example above, the agency may
select candidate 3, 4, or 5. The first non-preference candidate, number
3, may be selected now that there are no available veterans' preference
candidates ranked above them on the list. Candidate 6 may not be
selected because there are available veterans' preference candidates
ranked above candidate 6.
It should be noted that a certificate does not have to be worked
from the top down. In this example, any of the preference eligible
candidates may be selected. The fifth candidate, a 5-point preference
eligible, may have been selected first.
In another example, below, based on the ranked certificate, an
agency may select from among any of the top 5 candidates. The top three
non-preference eligibles are within reach, or legally eligible, for
selection because there are no higher ranked veterans' preference
candidates.
Certificate of Eligibles
------------------------------------------------------------------------
Candidate Score/VP Action
------------------------------------------------------------------------
1................... 98.0 NV................
2................... 96.0 NV................
3................... 96.0 NV................
4................... 95.0 TP................
5................... 95.0 TP................
6................... 95.0 NV................
------------------------------------------------------------------------
Three Bona Fide Considerations
The Act codifies at 5 U.S.C. 3318(e) the long-standing practice
under 5 CFR 332.405 of applying the ``three consideration rule'' under
numerical rating and ranking selection procedures, whereby, if an
appointing officer considers a candidate three times for three separate
appointments from the same or different certificates for the same
position \9\ and makes a valid (legal) selection of another candidate
each time, the appointing officer may remove that candidate from
further consideration. As stated above, the Act also retains the pass-
over rule, which imposes certain requirements when an appointing
authority proposes to pass over a preference eligible in favor of a
lower ranked non-preference eligible.
---------------------------------------------------------------------------
\9\ In this context, the same position means the same title,
series, and grade level or equivalent.
---------------------------------------------------------------------------
A pass-over must be based on proper and adequate reasons. The
Delegated Examining Operations Handbook provides information on proper
and adequate reasons. When substantiated by documentation supporting
the conclusion that one of the adequate and proper reasons has been
demonstrated, the eligible is either not qualified or not suitable for
the job and may be removed from consideration. Agencies with delegated
examining authority have the authority to make a determination on most
types of pass-overs. However, it should be noted that OPM retains
exclusive authority to:
<bullet> Make medical determinations pertaining to preference
eligibles (5 CFR part 339);
<bullet> Grant or deny an agency's pass-over request of a
preference eligible with a compensable service connected disability of
30 percent or more (5 U.S.C. 3318); and
<bullet> Make suitability determinations involving material,
intentional false statement or deception or fraud in examination or
appointment, or refusal to furnish testimony as required by 5 CFR
731.103(a).
This proposed rule is not intended to affect an agency's obligation
under 5 U.S.C. 3317 to notify a preference eligible of the eligible's
removal from a standing register based on being considered and passed
over for appointment three times.
Additionally, OPM proposes that the three consideration rule does
not always apply in cases of filling positions restricted to preference
eligibles. Such positions include guards, elevator operators,
messengers, and custodians (including housekeeping aides). [5 U.S.C.
3310]. The statute requires that in examining for such positions,
``competition is restricted to preference eligibles as long as
preference eligibles are available.'' [5 U.S.C. 3310.] If applications
from both preference and non-preference eligibles are accepted, OPM
proposes that agencies cannot eliminate preference eligibles from
further consideration once they have been certified and received three
bona fide considerations if doing so would result in the selection of a
non-preference eligible. In such a case, an approved pass-over would be
needed to remove the preference eligible from consideration prior to
selecting a non-preference eligible candidate.
OPM is proposing the following process to reconcile the use of the
three consideration rule in Sec. 3318(e) and the pass-over rule in
Sec. 3318(c) to preserve veterans' preference. OPM cautions agencies
to take a judicious approach when using the three consideration rule.
An agency may not use the three consideration rule to remove large
numbers of applicants in lieu of formal pass-over procedures. Agencies
should continue to pursue pass-over procedures when warranted and
consider using the three consideration provisions when pass-over
procedures are not justified. An agency should limit use of the three
consideration rule to situations in which an agency has made an
individualized determination that a specific applicant does not possess
the specific skills or attributes needed for the position being filled.
Therefore, in order to remove a candidate from consideration, one or
more hiring managers must have made three valid selections and given
bona fide consideration to the candidate during this process. OPM has
determined that a bona fide consideration under the three consideration
rule requires, at a minimum, that the hiring manager(s) has considered
the candidate's application material and interviewed the candidate for
the position. OPM proposes the requirement of an interview to ensure
that a candidate is treated as fairly and equitably as other candidates
being considered. The interview must have been of the same rigor and
thoroughness as that provided to other candidates. Such consideration
may have been given by one or more
[[Page 47063]]
hiring managers from the same or different certificates under the same
appointing officer. When more than one hiring manager is involved, each
hiring manager must have interviewed the candidate.
To use the three consideration provision, an agency must document
in the case file the bona fide consideration a candidate received
(including a copy of the interview and the interviewer's notes and
rating) and its reason(s) for removing the candidate from
consideration, including a description of why the applicant is not
receiving additional consideration, such as the applicant's lack of a
specific skill(s) or attribute(s).
When making multiple selections from a certificate, starting with
the fourth selection, one individual may be removed per selection using
the three consideration rule. OPM is proposing to amend 5 CFR 332.405
to include the requirements for this provision.
Example of Using the Three Consideration Rule
The following example goes through the steps an agency may take
when making multiple selections under the proposed rule of many. In
this example, the agency issued the following certificate of eligibles
based on a cut-score of 95. The agency expects to make 9 selections
from this certificate and conducts interviews with all 18 candidates.
Certificate of Eligibles
------------------------------------------------------------------------
Candidate Score/VP Action
------------------------------------------------------------------------
1................... 98.0 CP................
2................... 98.0 CPS...............
3................... 98.0 TP................
4................... 98.0 TP................
5................... 98.0 TP................
6................... 96.0 TP................
7................... 96.0 NV................
8................... 96.0 NV................
9................... 95.0 TP................
10.................. 95.0 TP................
11.................. 95.0 TP................
12.................. 95.0 TP................
13.................. 95.0 TP................
14.................. 95.0 NV................
15.................. 95.0 NV................
16.................. 95.0 NV................
17.................. 95.0 NV................
18.................. 95.0 NV................
------------------------------------------------------------------------
Any of the veterans' preference candidates referred on the
certificate may be selected. In this example, candidates 2 and 6
decline the position. For the first three selections, the agency
selects candidates 1, 4, and 5. (For purposes of this illustration, the
agency is selecting from the top of the certificate. However, the
agency could have selected any preference eligible on the certificate
including those further down on the list, such as candidates 12 or 13.)
Certificate of Eligibles
------------------------------------------------------------------------
Candidate Score/VP Action
------------------------------------------------------------------------
1................... 98.0 CP................ Selected.
2................... 98.0 CPS............... Declined.
3................... 98.0 TP................
4................... 98.0 TP................ Selected.
5................... 98.0 TP................ Selected.
6................... 96.0 TP................ Declined.
7................... 96.0 NV................
8................... 96.0 NV................
9................... 95.0 TP................
10.................. 95.0 TP................
11.................. 95.0 TP................
12.................. 95.0 TP................
13.................. 95.0 TP................
14.................. 95.0 NV................
15.................. 95.0 NV................
16.................. 95.0 NV................
17.................. 95.0 NV................
18.................. 95.0 NV................
------------------------------------------------------------------------
The agency has now considered candidate 3 in each of its earlier
selection decisions, that is, three times. The agency documents the
interview and the hiring manager's reason(s) to remove the candidate.
Candidate 3 is removed from consideration. At this point, the agency
may consider candidates 7, 8, or any of the veterans' preference
candidates. The agency selects candidate 8 for the fourth selection.
Certificate of Eligibles
------------------------------------------------------------------------
Candidate Score/VP Action
------------------------------------------------------------------------
1................... 98.0 CP................ Selected.
2................... 98.0 CPS............... Declined.
3................... 98.0 TP................ Removed--3
considerations.
4................... 98.0 TP................ Selected.
5................... 98.0 TP................ Selected.
6................... 96.0 TP................ Declined.
7................... 96.0 NV................
8................... 96.0 NV................ Selected.
9................... 95.0 TP................
10.................. 95.0 TP................
11.................. 95.0 TP................
12.................. 95.0 TP................
13.................. 95.0 TP................
14.................. 95.0 NV................
15.................. 95.0 NV................
16.................. 95.0 NV................
17.................. 95.0 NV................
18.................. 95.0 NV................
------------------------------------------------------------------------
For the fifth selection, the agency may select candidate 7 or any
of the veterans' preference candidates. The agency selects candidate
12. The agency has also determined to eliminate candidate 10 on the
basis of the three consideration rule because three selections have
been made and candidate 10 was not chosen. The agency documents the
interview and the hiring manager's reason(s) to remove the candidate.
Candidate 10 is removed from consideration.
Certificate of Eligibles
------------------------------------------------------------------------
Candidate Score/VP Action
------------------------------------------------------------------------
1................... 98.0 CP................ Selected.
2................... 98.0 CPS............... Declined.
3................... 98.0 TP................ Removed--3
considerations.
4................... 98.0 TP................ Selected.
5................... 98.0 TP................ Selected.
6................... 96.0 TP................ Declined.
7................... 96.0 NV................
8................... 96.0 NV................ Selected.
9................... 95.0 TP................
10.................. 95.0 TP................ Removed--3
considerations.
11.................. 95.0 TP................
12.................. 95.0 TP................ Selected.
13.................. 95.0 TP................
14.................. 95.0 NV................
15.................. 95.0 NV................
16.................. 95.0 NV................
17.................. 95.0 NV................
18.................. 95.0 NV................
------------------------------------------------------------------------
For the sixth selection, the agency may select candidate 7 or any
of the veterans' preference candidates. The agency selects candidate
13. The agency has determined that candidate 11 has been considered 3
times and documents the interview and the hiring manager's reason(s) to
remove the candidate. Candidate 11 is removed from consideration.
Certificate of Eligibles
------------------------------------------------------------------------
Candidate Score/VP Action
------------------------------------------------------------------------
1................... 98.0 CP................ Selected.
2................... 98.0 CPS............... Declined.
3................... 98.0 TP................ Removed--3
considerations.
4................... 98.0 TP................ Selected.
5................... 98.0 TP................ Selected.
6................... 96.0 TP................ Declined.
7................... 96.0 NV................
8................... 96.0 NV................ Selected.
9................... 95.0 TP................
10.................. 95.0 TP................ Removed--3
considerations.
11.................. 95.0 TP................ Removed--3
considerations.
12.................. 95.0 TP................ Selected.
13.................. 95.0 TP................ Selected.
14.................. 95.0 NV................
15.................. 95.0 NV................
16.................. 95.0 NV................
17.................. 95.0 NV................
18.................. 95.0 NV................
------------------------------------------------------------------------
For the seventh selection, the agency may select candidate 7 or 9.
Candidates 14 to 18 are still not within reach as there is a higher
ranked veterans' preference candidate available. The agency selects
candidate 9. The agency has determined that candidate 7 has been
considered 3 times and documents the interview and the hiring manager's
reason(s) to remove the candidate. Candidate 7 is removed from
consideration. (It should be noted that non-preference candidates may
be non-selected at any time.)
[[Page 47064]]
Certificate of Eligibles
------------------------------------------------------------------------
Candidate Score/VP Action
------------------------------------------------------------------------
1................... 98.0 CP................ Selected.
2................... 98.0 CPS............... Declined.
3................... 98.0 TP................ Removed--3
considerations.
4................... 98.0 TP................ Selected.
5................... 98.0 TP................ Selected.
6................... 96.0 TP................ Declined.
7................... 96.0 NV................ Removed--3
considerations.
8................... 96.0 NV................ Selected.
9................... 95.0 TP................ Selected.
10.................. 95.0 TP................ Removed--3
considerations.
11.................. 95.0 TP................ Removed--3
considerations.
12.................. 95.0 TP................ Selected.
13.................. 95.0 TP................ Selected.
14.................. 95.0 NV................
15.................. 95.0 NV................
16.................. 95.0 NV................
17.................. 95.0 NV................
18..................
------------------------------------------------------------------------
For selections eight and nine, the agency may select any of the
remaining candidates and selects candidate 15 and 17. Below is the
complete certificate of eligibles.
Certificate of Eligibles
------------------------------------------------------------------------
Candidate Score/VP Action
------------------------------------------------------------------------
1................... 98.0 CP................ Selected.
2................... 98.0 CPS............... Declined.
3................... 98.0 TP................ Removed--3
considerations.
4................... 98.0 TP................ Selected.
5................... 98.0 TP................ Selected.
6................... 96.0 TP................ Declined.
7................... 96.0 NV................ Removed--3
considerations.
8................... 96.0 NV................ Selected.
9................... 95.0 TP................ Selected.
10.................. 95.0 TP................ Removed--3
considerations.
11.................. 95.0 TP................ Removed--3
considerations.
12.................. 95.0 TP................ Selected.
13.................. 95.0 TP................ Selected.
14.................. 95.0 NV................ Non-selected.
15.................. 95.0 NV................ Selected.
16.................. 95.0 NV................ Non-selected.
17.................. 95.0 NV................ Selected.
18.................. 95.0 NV................ Non-selected.
------------------------------------------------------------------------
OPM welcomes the public's views on the impact this application of
the three consideration rule would have on agency hiring outcomes.
Supplemental Certification
Under competitive examining procedures, a supplemental certificate
may be issued when the original certificate results in fewer than three
eligible and available candidates per vacancy. Reasons why supplemental
certificates are needed often include: (1) the declination and failure
to respond rates are higher than anticipated; (2) additional vacancies
materialize in the office where the original certificate was sent; or
(3) a supervisor in another office (but still under the same appointing
officer) has an identical vacancy.
OPM proposes that, to allow for instances when a certificate of
eligibles issued under rule of many procedures results in fewer than
three eligible and available candidates per vacancy and the agency
needs to issue a supplemental certification, the agency must have
already decided how to expand the group of candidates for whichever of
the referral mechanisms used. This decision must be made before
announcing the vacancy and must be clearly documented in the examining
case file and available for reconstruction or third-party review. In
making this decision an agency may, for example, establish a standard
policy that the cut-off score used to establish the original
certificate of eligibles may be augmented by dropping down 10 points,
for example, from 95 to 85 points, as determined on a case-by-case
basis based on business necessity. Following are illustrations of how
this process might work.
1. A cut-off score based on the assessment(s) used, supported by
job analysis data. A supplemental cut-off score may be established for
instances when the original certificate is exhausted. For example, the
original cut-off score may be set at 95 and, if additional applicants
are needed after exhausting the certificate of eligibles, a cut-off
score of 90 will be used.
2. A cut-off score based on business necessity. A supplemental cut-
off score may be established for instances when the original
certificate is exhausted. For example, the original cut-off score may
be set at 98 and, if additional applicants are needed after exhausting
the certificate of eligibles, a cut-off score of 94 will be used.
3. A set number of the highest ranked eligible applicants. For
example, if the top 10 applicants are referred and then exhausted, the
next ranked 10 applicants may be referred.
4. A percentage of the highest ranked eligible applicants. For
example, if the top 10 percent are referred and then exhausted, then
the next 5 percent of top applicants may be referred.
The eligible candidates remaining on the original certificate
retain their higher order of placement on the expanded certificate and
candidates on the supplemental certificate are ranked below them. In
working the expanded certificate, i.e., the original and supplemental
certificates together, any preference eligible may be selected. A non-
preference eligibles may be selected only if there is no preference
eligible above them on the list. That is, a hiring manager may not
select a non-preference eligible when there is an equal or higher-
ranked preference eligible veteran(s) unless there are reasons for
passing over the preference eligible and the agency has complied with
the pass-over procedures at 5 U.S.C. 3318(c). Alternatively, as
previously described, the three consideration rule may be used to
remove an eligible candidate (to include preference eligibles) from the
certificate who has received three bona fide considerations.
OPM is proposing to amend 5 CFR 332.402 to include the provision
for issuing supplemental certification. Additionally, OPM will provide
these and other examples in the guidance it issues when this proposed
rule is implemented.
Category Rating
OPM notes that the NDAA added a provision at 5 U.S.C. 3319(c)(6)
(renumbered from (c)(7) and amended by the Act) to allow an agency to
use category rating procedures when issuing certificates from a
standing register. When an appointing officer has three times
considered and removed a preference eligible certified from a standing
register through pass-over procedures, certification of the preference
eligible may be discontinued. OPM will include this change in its
category rating guidance in the Delegated Examining Operations Handbook
(DEOH); however, no modifications to the regulations are needed as
Sec. 337.304 already directs that veterans' preference be applied as
prescribed in 5 U.S.C. 3319, which incorporates the recent amendment.
OPM is proposing to amend 5 CFR 337.304 to reflect the new numbering of
5 U.S.C. 3319(c)(6). Additionally, OPM is proposing to retitle part
337, subpart C--Category Rating to conform to the statute.
Excepted Service Selections
Appointments in the excepted service are made in the same manner
and under the same conditions required for the competitive service, as
required by 5 U.S.C. 3320. With the proposed elimination of the rule of
three, OPM is proposing to revise the procedures in 5 CFR part 302 to
remove the requirement to make selection from among the highest three
names available when using numerical scores and to add that agencies
may apply the methods identified by OPM for identifying the number of
applicants referred for selection. These methods (which are the same as
described above for filling positions in the competitive service) are:
[[Page 47065]]
1. The use of a cut-off score based on the assessment(s) used,
supported by job analysis data.
2. The use of a cut-off score based on business necessity; for
example, to keep the number of applicants manageable for costly or
labor-intensive assessments such as structured interviews.
3. A set number of candidates, for example, the top 10 applicants.
4. A percentage of the highest rated applicants; for example, the
top 10 percent will be referred for selection.
In selecting an appropriate mechanism, agencies should consider the
assessment(s) used, historical applicant data, current labor market
conditions, and other factors appropriate for the hiring action.
The NDAA also amended 5 U.S.C. 3320 to allow agencies to apply the
provisions of 5 U.S.C. 3319, category rating, when making excepted
service appointments in the same or similar manner as in the
competitive service. OPM is proposing to revise the procedures for
accepting, rating, and arranging applications in 5 CFR part 302 to
include the option of using the category rating procedures as outlined
in 5 U.S.C. 3319. Agencies are reminded that instructions for creating
quality categories and procedures for certification and selection under
category rating are provided in the DEOH available at <a href="http://www.opm.gov/deu">www.opm.gov/deu</a>.
Proposed Sec. 302.201(c) provides information on granting
veterans' preference when quality categories are used. When an agency
chooses to use quality categories, it must list qualified preference
eligibles ahead of non-preference eligibles within the same quality
category.
OPM is proposing to modify Sec. 302.302(a) to allow the use of
either numerical rating or category rating when evaluating candidates.
OPM is proposing to modify Sec. 302.302(b) to include procedures
for using category rating. For the convenience of the reader, the
existing process for numerical rating is listed as Sec. 302.302(b)(1)
and the procedures for using category rating are added as Sec.
302.302(b)(2). An agency will be required to predefine at least two
quality categories when using category rating.
OPM is proposing to modify the procedures for the maintenance of
employment lists in Sec. 302.303(d) by adding a new subparagraph Sec.
302.303(d)(3) to explain the order used to list preference eligibles
within each quality category. Within each quality category, preference
eligibles must be listed ahead of non-preference eligibles and may be
listed in preference or alphabetical order.
Proposed Sec. 302.304(b) includes procedures on the order of
consideration when quality categories are used. These procedures are
added as Sec. 302.304(b)(6). The procedures require an agency to first
consider candidates on the reemployment list, followed by candidates in
the highest quality category, with preference eligibles listed ahead of
non-preference eligibles, and then candidates in the next lower quality
category, with preference eligibles listed ahead of non-preference
eligibles.
Proposed Sec. 302.401 modifies the current provisions to include
procedures for the use of quality categories when making selections.
For the convenience of the reader, the procedures for making selections
from unranked lists are listed in Sec. 302.401(a)(1) and have been
revised to match processes used in the competitive service when
unranked lists are used. The procedures for using numerical lists are
in Sec. 302.401(a)(2) and OPM is proposing to modify them to allow the
agency to use an objective mechanism to define a sufficient number of
candidates to refer for selection. The procedures for making selections
using category rating are in Sec. 302.401(a)(3) and allow an agency to
select a candidate from the highest quality category as long as a non-
preference eligible is not selected ahead of a preference eligible (an
agency can select any preference eligible veteran in the highest
quality category).
Expected Impact of This Proposed Rule
OPM is proposing regulations to implement changes authorized by the
NDAA governing the selection of candidates from competitive lists of
eligibles. The NDAA eliminated the ``rule of three'' in numerical
rating and ranking, which required that, for each selection,
consideration was limited to the top three candidates on the ranked
certificate of eligibles. The NDAA, instead, authorizes agencies to
certify a ``sufficient number'' of names, not less than three, from the
top of the appropriate register, or list of eligibles, to be considered
for selection, using a cut-off score or other mechanism established by
OPM. The NDAA also affects how agencies make selections under 5 CFR
part 302 procedures for excepted service appointments.
This proposal is part of a larger OPM effort to improve the hiring
process by helping agencies make meaningful distinctions among
applicants in terms of their relative qualifications for the position
being filled, while at the same time expanding the range of candidates
from which a hiring manager may make a selection as compared to the
more restrictive rule of three (i.e., a hiring manager is not limited
to choosing from among only the three highest applicants).
OPM is proposing four mechanisms for agencies to use to determine a
``sufficient number'' of names to certify for consideration, and the
proposal includes provisions for using the three consideration rule in
numerical rating and ranking. The proposed rule does not change the
application of veteran's preference in competitive examining--veterans
are still granted preference points under numerical rating procedures
and continue to be entitled to selection preference over non-preference
eligibles with the same or lower numerical score unless the
requirements for passing over a preference eligible are satisfied.
The proposed rule also replaces ``rule of three'' procedures in
excepted service hiring and allows agencies instead to use one of the
same mechanisms described under competitive examining procedures to
determine a ``sufficient number'' of names to certify for
consideration. The NDAA also amended 5 U.S.C. 3320 to allow agencies to
apply 5 U.S.C. 3319, category rating, when making excepted service
appointments in the same or similar manner as in the competitive
service. OPM's proposal revises the procedures for accepting, rating,
and arranging applications in 5 CFR part 302 to include the option of
using the category rating procedures as outlined in 5 U.S.C. 3319.
Costs
This proposed rule, once finalized and in effect, will affect the
operations of over 80 Federal agencies--ranging from cabinet-level
departments to small independent agencies. OPM will provide guidance on
implementing this rulemaking in the form of frequently asked questions
and updates to the Delegated Examining Operations Handbook and
Delegated Examining Training. OPM estimates that this rulemaking will
require individuals employed by these agencies to modify policies and
procedures to implement the rulemaking and train human resources (HR)
practitioners and hiring managers on its use. For the purpose of this
cost analysis, the assumed average salary rate of Federal employees
performing this work will be the rate in 2023 for GS-14, step 5, from
the Washington, DC, locality pay table ($150,016 annual locality rate
and $71.88 hourly locality rate). We assume that the total dollar value
of labor, which includes wages, benefits, and
[[Page 47066]]
overhead, is equal to 200 percent of the wage rate, resulting in an
assumed labor cost of $143.76 per hour.
In order to comply with the regulatory changes in this Notice of
Proposed Rulemaking, affected agencies will need to review the rule and
update their policies and procedures. We estimate that, in the first
year following publication of the final rule, doing so will require an
average of 300 hours of work by employees with an average hourly cost
of $143.76. This work would result in estimated costs in that first
year of implementation of about $43,128 per agency, and about
$3,450,240 in total Governmentwide. Some agencies may incur additional
costs to ensure they have staff with the necessary assessment
measurement expertise to use these proposed procedures. Numerical
ranking is appropriate when a hiring agency needs to make finer, more
granular distinctions between applicants, i.e., an individual with a
score of 97 (out of a 100 possible points) is deemed more qualified
than an applicant with a score of 96 or lower. Therefore, using these
procedures will require assessment tools that make those meaningful
distinctions and measurement experts to understand their use to
establish appropriate cut-off scores. For the purpose of this cost
estimate, the assumed average salary rate of Federal employees
performing this work will be the rate in 2023 for GS-14, step 5, from
the Washington, DC, locality pay table ($150,016 annual locality rate).
We assume that the total dollar value of labor, which includes wages,
benefits, and overhead, is equal to 200 percent of the wage rate,
resulting in an assumed labor cost of $300,032 annually for those
agencies in this situation.
We do not believe this rulemaking will substantially increase the
ongoing administrative costs to agencies (including the administrative
costs of using these new procedures and training new staff) because the
rulemaking is replacing existing procedures and processes. OPM notes
that agencies may incur higher costs to develop or purchase more
rigorous assessments to use in determining cut-off scores under rule of
many procedures. Alternatively, agencies may experience cost savings by
identifying and selecting highly-qualified candidates more quickly
through expanded choices and may recognize cost savings by eliminating
the need to re-advertise and re-work hiring actions when selections
were not made.
Finally, we intend and expect that the provisions of this proposed
rule will operate independently and be treated as severable. If any
part or section of this proposed rule as finalized were invalidated by
a reviewing court, the remaining provisions of the rule will continue
to concern and effectuate the purpose of the rule, which is to
implement changes in the various procedures for selecting candidates
under delegated examining authorized by the NDAA for FY 2019.
Executive Order 12866
Executive Order 12866 directs agencies to assess all costs and
benefits of available regulatory alternatives and, if regulation is
necessary, to select regulatory approaches that maximize net benefits
(including potential economic, environmental, public health and safety
effects, distributive impacts, and equity). In accordance with the
provisions of Executive Order 12866, this rulemaking was reviewed by
the Office of Management and Budget as a significant rule.
Regulatory Flexibility Act
The Director of the Office of Personnel Management certifies that
this regulation will not have a significant impact on a substantial
number of small entities because it applies only to Federal agencies
and employees.
Federalism
We have examined this rulemaking in accordance with Executive Order
13132, Federalism, and have determined that this rulemaking will not
have any negative impact on the rights, roles and responsibilities of
State, local, or tribal governments.
Civil Justice Reform
This regulation meets the applicable standard set forth in
Executive Order 12988.
Unfunded Mandates Reform Act of 1995
This rulemaking will not result in the expenditure by State, local,
or tribal governments, in the aggregate, or by the private sector, of
more than $100 million or more in any year, and it will not
significantly or uniquely affect small governments. Therefore, no
actions were deemed necessary under the provisions of the Unfunded
Mandates Reform Act of 1995.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521)
This regulatory action will not impose any additional reporting or
recordkeeping requirements under the Paperwork Reduction Act.
List of Subjects in 5 CFR Parts 302, 332, and 337
Government employees.
U.S. Office of Personnel Management.
Kayyonne Marston,
Federal Register Liaison.
Accordingly, the Office of Personnel Management proposes to amend
title 5, Code of Federal Regulations, as follows:
PART 302--EMPLOYMENT IN THE EXCEPTED SERVICE
0
1. The authority citation for part 302 continues to read as follows:
Authority: 5 U.S.C. 1302, 3301, 3302, 8151, E.O. 10577 (3 CFR
1954-1958 Comp., p. 218); Sec. 302.105 also issued under 5 U.S.C.
1104, Pub. L. 95-454, sec. 3(5); Sec. 302.501 also issued under 5
U.S.C. 7701 et seq.
0
2. In Sec. 302.201, add paragraph (c) to read as follows:
Sec. 302.201 Persons entitled to veteran preference.
* * * * *
(c) When quality categories are used in the evaluation and
referral, the agency shall list preference eligibles under section
2108(3) of title 5, United States Code, ahead of non-preference
eligibles in accord with Sec. 302.304(b)(6).
0
3. In Sec. 302.302, revise paragraphs (a) and (b) to read as follows:
Sec. 302.302 Examination of applicants.
(a) Eligibility. An evaluation of the qualifications of applicants
for positions covered by this part may be conducted at any time before
an appointment is made. The evaluation may involve only determination
of eligibility or ineligibility or may include qualitative rating of
candidates. If the evaluation involves only basic eligibility,
candidates will not receive numerical scores or be placed in quality
categories and will be referred in accordance with the procedures
described in Sec. 302.304(b)(5). If qualitative ranking is desired,
numerical scores or placement in quality categories may be assigned in
accordance with paragraph (b) of this section. Each agency shall make a
part of the records the reasons for its decision to use ranked or
unranked referral and, for ranked actions, the rating factors used.
This information shall be made available to an applicant on his/her
request.
(b) Rating--(1) Numerical rating. Numerical scores will be assigned
on a scale of 100. Each applicant who meets the qualification
requirements for the position established under Sec. 302.202 will be
assigned a rating of 70 or more and will be eligible for appointment.
Candidates scoring 70 or more will
[[Page 47067]]
receive additional points for veteran preference as provided in Sec.
302.201. Numerical ratings are not required when all qualified
applicants will be offered immediate appointment. When there are an
excessive number of applicants, numerical ratings are required only for
a sufficient number of the highest qualified applicants to meet the
anticipated needs of the agency within a reasonable period of time. The
agency must, however, adopt procedures to ensure the consideration of
preference eligibles in the order in which they would have been
considered if all applicants had been assigned numerical ratings. An
agency shall furnish a notice of the rating assigned to an applicant on
his/her request.
(2) Category rating. In accordance with 5 CFR part 337, subpart C,
an agency must predefine at least two quality categories that reflect
the requirements to perform the job successfully and to distinguish
differences in the quality of candidates' job-related competencies/
knowledge, skills and abilities. An agency may not establish a ``not
qualified'' category. Only those found qualified will be placed in a
category. Quality categories must be established and defined by the
employing agency prior to accepting applications. Quality categories
are not required when all qualified applicants will be offered
immediate appointment.
* * * * *
0
4. In Sec. 302.303, add paragraph (d)(3) to read as follows:
Sec. 302.303 Maintenance of employment lists.
* * * * *
(d) * * *
(3) When candidates have been placed in quality categories under
Sec. 302.302(b). Within each quality category, preference eligibles
must be listed ahead of non-preference eligibles and may be listed in
preference or alphabetical order. Preference eligibles having a
compensable, service-connected disability of 10 percent or more
(designated as CPS or CP) are placed in the highest quality category
unless the list will be used to fill scientific or professional
positions at the GS-9 level or above, or equivalent.
0
5. In Sec. 302.304, revise paragraph (b) introductory text and add
paragraph (b)(6) as follows:
Sec. 302.304 Order of consideration.
* * * * *
(b) Consideration of other candidates. Except as provided in
paragraphs (b)(4), (b)(5) and (b)(6) of this section, an agency shall
consider applicants on the reemployment and regular employment list who
have been assigned eligible ratings for a given position in Order A,
Order B, or Order C, as described in paragraphs (b)(1) through (b)(3)
of this section. Order A must be used when the agency has not
established a reemployment list.
* * * * *
(6) Category rating. In accordance with 5 CFR part 337, subpart C,
qualified preference eligibles will be listed ahead of non-preference
eligibles within the same quality category in which they were assigned.
Qualified preference eligibles with a compensable service-connected
disability of 30-percent or more (CPS) and those with a compensable
service-connected disability of at least 10-percent but less than 30-
percent (CP) move from the category in which they would otherwise be
placed to the highest quality category (except for scientific or
professional positions at the GS-9 level or higher). Eligible
candidates are considered in the following order:
(i) Candidates on the reemployment list;
(ii) Candidates in the highest quality category with preference
eligibles listed ahead of non-preference eligibles; and
(iii) Candidates in each subsequent lower quality category with
preference eligibles listed ahead of non-preference eligibles.
0
6. In Sec. 302.401, revise paragraph (a) to read as follows:
Sec. 302.401 Selection and appointment.
(a) Selection--(1) Unranked lists. When making an appointment from
a priority reemployment, reemployment, or regular list on which
candidates have not received numerical scores, an agency must make its
selection from among the qualified preference eligibles, as long as at
least three candidates remain in that group. When fewer than three
preference eligibles remain, consideration may be expanded to include
the non-preference eligibles in accordance with paragraph (b) of this
section, passing over a preference applicant.
(2) Numerical lists. When making an appointment from a list on
which candidates have received numerical scores, an agency must use one
of the methodologies identified below to determine the number of
applicants referred for selection. A selecting official may select any
eligible candidate referred for selection. However, a selecting
official may not pass over a preference eligible to select a lower
standing non-preference eligible unless the agency has complied with
the pass-over procedures in paragraph (b) of this section. The
mechanism, or approach, used must be determined before soliciting for
applications and be made available to applicants upon their request.
The approach used must be clearly documented in the recruitment file
and available for reconstruction or third-party review. The agency may
determine, based on the position to be filled, which of the following
mechanisms will best meet the hiring needs of the agency and result in
at least three names for consideration for appointment in the order
provided in Sec. 302.304.
(i) The agency may establish a cut-off score based on the
assessment(s) used, supported by job analysis data;
(ii) The agency may use of a cut-off score based on business
necessity;
(iii) The agency may use a set number of the highest ranked
eligible applicants; or
(iv) The agency may use a set percentage of the highest ranked
eligible applicants.
In selecting an appropriate mechanism, agencies should consider the
assessment(s) used, historical applicant data, current labor market
conditions, and other factors appropriate for the hiring action.
(3) Category rating. When making appointments from a list on which
candidates have been placed in quality categories, in accordance with 5
CFR part 337, subpart C, an agency may select any eligible candidate(s)
in the highest quality category; except the selecting official may not
select a non-preference eligible over a preference eligible unless the
agency has complied with the pass-over procedures in paragraph (b) of
this section. If there are fewer than three candidates in the highest
quality category, the agency may combine (merge) the top two quality
categories and make selections from the newly merged category. The
newly merged category is the new highest quality category. Preference
eligibles must be listed ahead of non-preference eligibles in the newly
merged category.
(4) Conditions. Under any of the above selection methods, an agency
is not required to--
(i) Accord an applicant on its priority reemployment or
reemployment list the preference consideration required by Sec.
302.304 if the list on which the applicant's name appears does not
contain the names of at least three preference eligibles; or
(ii) Consider an applicant who has previously been considered three
times or a preference eligible if consideration of his/her name has
been discontinued for the position as provided in paragraph (b) of this
section.
[[Page 47068]]
PART 332--RECRUITMENT AND SELECTION THROUGH COMPETITIVE EXAMINATION
0
7. The authority citation for part 332 continues to read as follows:
Authority: 5 U.S.C. 1103, 1104, 1302, 2108, 3301, 3302, 3304,
3312, 3317, 3318, 3319; sec. 2(d), Pub. L. 114-137, 130 Stat. 310;
E.O. 10577, 19 FR 7521, 3 CFR, 1954-1958 Comp., p. 218.
0
8. Revise Sec. 332.402 to read as follows:
Sec. 332.402 Referring candidates for appointment.
OPM or a delegated examining unit (DEU) will use one of the
mechanisms identified below to refer a sufficient number of candidates
for consideration, in accordance with this section and the agency's
delegated examining policies.
(a) Agencies must establish a policy on the use of these
procedures.
(b) OPM or a DEU may determine, based on the position to be filled,
which of the following mechanisms will best meet the hiring needs of
the agency and result in at least three names for consideration.
(1) OPM or a DEU may establish a cut-off score based on the
assessment(s) used, supported by job analysis data;
(2) OPM or a DEU may establish a cut-off score based on business
necessity;
(3) OPM or a DEU may use a set number of the highest ranked
eligible applicants to certify; or
(4) OPM or a DEU may use a set percentage of the highest ranked
eligible applicants to certify.
(5) When using a set number of candidates or top percentage of
eligible applicants, all applicants with the same score and veterans'
preference category as the last candidate in the cut, will also be
referred.
(6) In selecting an appropriate mechanism, agencies should consider
the number of positions to be filled, the assessment(s) used,
historical applicant data, current labor market conditions, and other
factors appropriate for the hiring action.
(c) The mechanism, or approach, used must be determined before
announcing the vacancy and must be stated in the job opportunity
announcement.
(d) The approach used must be clearly documented in the examining
case file and available for reconstruction or third-party review.
(e) Hiring managers will receive sufficient names, when available,
to allow them to consider at least three candidates for each vacancy.
(f) In instances when a certificate of eligibles results in fewer
than three eligible and available candidates per vacancy and an agency
needs to issue a supplemental certification, OPM or a DEU must have
decided, before announcing the vacancy, how to expand the group of
candidates for whichever of the referral mechanisms used in accordance
with the guidance in the Delegated Examining Operations Handbook.
(g) OPM or a DEU will refer candidates for consideration by
simultaneously listing a candidate on all certificates for which the
candidate is interested, eligible, and within reach, except that, when
it is deemed in the interest of good administration and candidates have
been so notified, OPM or a DEU may choose to refer candidates for only
one vacancy at a time.
0
9. Revise Sec. 332.404 to read as follows:
Sec. 332.404 Order of selection from certificates.
A hiring manager, with sole regard to merit and fitness, shall
select any eligible candidate certified for appointment on a
certificate of eligibles, except the hiring manager may not pass over a
preference eligible to select a lower standing non-preference eligible
on the certificate unless the agency complies with pass over procedures
in accordance with Sec. 332.406.
0
10. Revise Sec. 332.405 to read as follows:
Sec. 332.405 Three considerations for appointment.
An appointing officer is not required to consider an eligible who
has been considered by one or more hiring managers for three separate
appointments from the same or different certificates for the same
position (i.e., the same title, series, and grade). In order to remove
a candidate from consideration, one or more hiring managers must have
made three valid selections and given bona fide consideration to the
candidate during this process.
(a) Bona fide consideration. To use this provision, a hiring
manager must consider the candidate's application material and
interview the candidate for the position. The interview must have been
of the same rigor and thoroughness as those conducted with other
candidates interviewed for the position.
(b) Documentation. The agency must document in the case file the
bona fide consideration a candidate received and its reason(s) for
removing the candidate from consideration, including a description of
why the candidate is not receiving additional consideration, such as
the candidate's lack of a specific skill(s) or attribute(s).
(c) Selection consideration. An agency may use the three
consideration provision to remove one candidate from further
consideration starting with the fourth selection, i.e., after three
valid selections have been made, and may remove one candidate for each
subsequent selection made from a certificate of eligibles as long as
bona fide consideration has been given and documented as required by
this section.
PART 337--EXAMINING SYSTEM
0
11. The authority citation for part 337 continues to read as follows:
Authority: 5 U.S.C. 1104(a), 1302, 2302, 3301, 3302, 3304, 3319,
5364; E.O. 10577, 3 CFR 1954-1958 Comp., p. 218; 33 FR 12423, Sept.
4, 1968; and 45 FR 18365, Mar. 21, 1980; 116 Stat. 2135, 2290; 117
Stat. 1392, 1665; and E.O. 13833.
0
12. Revise the heading to subpart C to read as follows:
Subpart C--Category Rating
0
13. Revise Sec. 337.304 to read as follows:
Sec. 337.304 Veterans' preference.
In this subpart:
(a) Veterans' preference must be applied as prescribed in 5 U.S.C.
3319(b) and (c)(6);
(b) Veterans' preference points as prescribed in Sec. 337.101 are
not applied in category rating; and
(c) Sections 3319(b) and 3319(c)(6) of title 5 U.S.C. constitute
veterans' preference requirements for purposes of 5 U.S.C.
2302(b)(11)(A) and (B).
[FR Doc. 2023-15374 Filed 7-20-23; 8:45 am]
BILLING CODE 6325-39-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on July 21, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.