Proposed Rule2026-19222
Employment in the Excepted Service
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
September 18, 2026
Issuing agencies
Personnel Management Office
Abstract
The Office of Personnel Management (OPM) proposes to amend its regulations governing the excepted service, Pathways Programs, and administrative law judge (ALJ) appointments. The proposed rule would conform OPM regulations to current excepted-service schedules, including Schedules E, Policy/Career, and G; modernize part 302 procedures while preserving veterans' preference, compensable-injury restoration rights, and other priority placement rights; authorize and clarify Pathways conversions to Schedule Policy/Career; and make related conforming amendments.
Full Text
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<title>Federal Register, Volume 91 Issue 180 (Friday, September 18, 2026)</title>
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[Federal Register Volume 91, Number 180 (Friday, September 18, 2026)]
[Proposed Rules]
[Pages 59076-59098]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-19222]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 91, No. 180 / Friday, September 18, 2026 /
Proposed Rules
[[Page 59076]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Parts 213, 302, 317, 359, 362, 432, 550, 731, 920, and 930
[Docket ID: OPM-2026-0166]
RIN 3206-AO92
Employment in the Excepted Service
AGENCY: Office of Personnel Management.
ACTION: Proposed rule.
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SUMMARY: The Office of Personnel Management (OPM) proposes to amend its
regulations governing the excepted service, Pathways Programs, and
administrative law judge (ALJ) appointments. The proposed rule would
conform OPM regulations to current excepted-service schedules,
including Schedules E, Policy/Career, and G; modernize part 302
procedures while preserving veterans' preference, compensable-injury
restoration rights, and other priority placement rights; authorize and
clarify Pathways conversions to Schedule Policy/Career; and make
related conforming amendments.
DATES: Comments must be received on or before November 17, 2026.
ADDRESSES: You may submit comments by using the Federal eRulemaking
Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the instructions for
submitting comments.
All submissions must include the agency name and docket number or
RIN for this Federal Register document. Please arrange and identify
your comments about the regulatory text by subpart and section number.
If your comments relate to the supplementary information, please refer
to the heading and page number in the supplementary section. All
comments must be received by the end of the comment period for them to
be considered. All comments and other submissions received generally
will be posted on the internet at <a href="https://www.regulations.gov">https://www.regulations.gov</a> as they
are received, without change, including any personal information
provided. However, OPM retains discretion to redact personal or
sensitive information, including but not limited to personal or
sensitive information pertaining to third parties. As required by 5
U.S.C. 553(b)(4), a summary of this rule may be found in the docket for
this rulemaking at <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: Ms. Katika Floyd at (202) 606-9531 or
by email at <a href="/cdn-cgi/l/email-protection#8de8e0fde1e2f4cde2fde0a3eae2fb"><span class="__cf_email__" data-cfemail="57323a273b382e1738273a79303821">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background
OPM proposes to revise several civil service regulations to conform
them to current excepted service schedules, recent Executive orders,
and the statutory framework governing excepted service appointment
procedures. These amendments are intended to modernize excepted service
hiring rules, remove obsolete or unnecessarily complex procedures,
preserve statutory veterans' preference and restoration rights, update
regulations governing Pathways Programs and ALJ appointments, and
simplify the priority reemployment list provisions. This proposal to
overhaul excepted service employment is supplemented by another OPM
regulation--Shared Certificates and Pooled Hiring Actions--that
includes additional enhancements to 5 CFR part 302 (Employment in the
Excepted Service) that align with changes being made to the regulations
governing recruitment and hiring in the competitive service. 91 FR
58347; Sept. 15, 2026.
A. Excepted Service Appointments and 5 U.S.C. 3320
Section 3320 of title 5, United States Code, provides that the
nominating or appointing authority must select for each excepted
service vacancy from qualified applicants ``in the same manner and
under the same conditions'' required for the competitive service by the
veterans' preference and related provisions referenced in that section,
and excludes appointments requiring Senate confirmation or advice and
consent. OPM's regulations in part 302 have long implemented this
requirement for positions in the excepted service. Current part 302
contains detailed procedures for accepting applications, examining
applicants, maintaining employment lists, applying orders of
consideration, and making selections.
OPM now proposes to simplify part 302 while preserving the
statutory core of the rule: veterans' preference, job-related
qualification requirements, and legally required priority
consideration. The proposed rule would remove the legacy structure of
priority reemployment lists, reemployment lists, regular employment
lists, Orders A, B, and C, professional orders, and unranked orders. In
place of that structure, the rule would require agencies to identify
and consider qualified and available priority candidates before
selecting non-priority candidates, subject to any available and lawful
exception. The rule also would retain and clarify restoration and
priority-placement protections for employees recovering from
compensable injuries under 5 U.S.C. 8151.
B. Recent Executive Orders Affecting Excepted Service Schedules
Several recent Executive orders require conforming amendments to
part 213 and related civil service regulations.
First, Executive Order (E.O.) 13843 of July 10, 2018, ``Excepting
Administrative Law Judges From the Competitive Service,'' (83 FR 32755)
directed that appointments of ALJs under 5 U.S.C. 3105 be made under
Schedule E of the excepted service. The order amended Civil Service
Rule VI to create Schedule E and stated that appointment to an ALJ
position is not subject to part 302 examination and rating
requirements, though agencies must follow the principle of veterans'
preference as far as administratively feasible.
Second, E.O. 13957 of October 21, 2020, ``Creating Schedule F in
the Excepted Service,'' (85 FR 67631) created Schedule F in the
excepted service for career positions of a confidential, policy-
determining, policy-making, or policy-advocating character. E.O. 14171
of January 20, 2025, ``Restoring Accountability to Policy-Influencing
Positions Within the Federal Workforce,'' (90 FR 8625) reinstated and
amended E.O. 13957, including by replacing Schedule F terminology with
Schedule Policy/Career.
Third, E.O. 14317 of July 17, 2025, ``Creating Schedule G in the
Excepted
[[Page 59077]]
Service,'' (90 FR 34753) created Schedule G for noncareer positions of
a policy-making or policy-advocating character normally subject to
change as a result of a Presidential transition. The order also revised
Civil Service Rule VI to identify Schedules A, B, C, D, E, Policy/
Career, and G, and distinguished Schedule G from Schedule C and
Schedule Policy/Career.
Fourth, E.O. 14410 of June 3, 2026, ``Implementing Schedule Policy/
Career in the Excepted Service,'' (91 FR 34893) further implemented
Schedule Policy/Career by placing identified positions in Schedule
Policy/Career and amending the Civil Service Rules and prior Executive
orders. Among other things, the order:
<bullet> Amended Civil Service Rule I to clarify retention of
competitive status when an employee's competitive service position is
first listed under Schedule A, B, C, Policy/Career, or G;
<bullet> Amended Civil Service Rule III to recognize a basis for
appointment without competitive examination for an employee whose
initial appointment was to a Pathways Program position in Schedule D
and who was later converted to Schedule Policy/Career without a break
in service of 1 day;
<bullet> Amended Civil Service Rule VI to require at least annual
publication of excepted-service schedules;
<bullet> Provided for acquisition of competitive status by certain
employees serving probationary periods when their positions are first
placed in Schedule Policy/Career;
<bullet> Amended Civil Service Rule XI to provide that individuals
appointed to positions in Schedule C, Schedule E, Schedule Policy/
Career, and Schedule G are not subject to trial periods; and
<bullet> Amended E.O. 13562 (75 FR 82585, Dec. 30, 2010) to provide
that Pathways career appointments may include positions in Schedule
Policy/Career, subject to OPM review.
Together, these Executive orders require conforming amendments to
several parts of OPM's regulations to ensure that the Code of Federal
Regulations (CFR) accurately reflects the current structure of the
excepted service and the legal consequences of appointments under
Schedules C, E, Policy/Career, and G.
C. Purpose of This Proposed Rule
The proposed rule has four principal purposes.
First, it would conform part 213 to the current excepted service
schedule structure by adding express regulatory text for Schedule E ALJ
appointments and Schedule G appointments, and by conforming provisions
governing publication, temporary and time-limited appointments, unique
identifiers, and certain Schedule A authorities. It would also make
conforming amendments to parts 317, 359, 432, 550, 731, and 920 to
account for the creation of Schedule G.
Second, it would modernize part 302 by replacing outdated and
difficult-to-administer list and order-of-consideration procedures with
a simpler framework centered on veterans' preference, qualification
requirements, job-related evaluation methods, and priority
consideration for employees with legally required restoration or
reemployment rights.
Third, it would implement conforming changes to Pathways and
Schedule Policy/Career regulations so that eligible Pathways
Participants may be converted to permanent Schedule Policy/Career
appointments where authorized.
Fourth, it would conform ALJ regulations in part 930 to Schedule E
by removing obsolete competitive-examination and list-of-eligibles
terminology for new ALJ appointments, while preserving applicable
statutory protections for ALJs, including 5 U.S.C. 3105 and 7521. It
would also update the part 930 regulations relating to reductions in
force (RIFs) involving ALJs, conforming those regulations to the status
of ALJs appointed after July 10, 2018 as excepted service employees.
OPM previously proposed amendments to its ALJ regulations to
implement E.O. 13843 and conform the regulations governing ALJ
appointment and employment to the creation of Schedule E. See
Administrative Law Judges, 85 FR 59207 (Sept. 21, 2020). On April 2,
2026, OPM withdrew that proposed rule, explaining that the comments
received in response to the 2020 proposal were more than five years
old, that agencies had already implemented E.O. 13843, and that OPM
intended to propose Schedule E regulatory changes as part of a broader
excepted-service rulemaking under RIN 3206-AO92. See Administrative Law
Judges; Withdrawal, 91 FR 16584 (Apr. 2, 2026). Consistent with that
withdrawal notice, this proposed rule now addresses Schedule E as part
of the broader overhaul of OPM's excepted service regulations.
II. Proposed Changes
A. Part 213--Excepted Service
OPM proposes to revise part 213 to reflect the current schedules in
the excepted service: Schedules A, B, C, D, E, Policy/Career, and G.
Proposed amendments to Sec. 213.102 would update the heading and
conform the provision governing OPM placement of positions into
excepted service schedules.
OPM proposes to revise Sec. 213.103 to eliminate the requirement
that OPM publish a monthly Federal Register notice identifying each
establishment or revocation of an agency-specific Schedule A, B, C,
Policy/Career, or G authority. Current Sec. 213.103 requires
governmentwide excepted-service authorities to be published as
regulations in the Federal Register and the CFR, requires monthly
notice of agency-specific Schedule A, B, C, and Policy/Career
authorities, and requires an annual consolidated listing of all such
agency-specific authorities current as of June 30. The proposed rule
would retain publication of governmentwide authorities in the Federal
Register and CFR and would retain an annual consolidated Federal
Register notice for agency-specific authorities, but would remove the
monthly notice requirement.
OPM has tentatively determined that monthly publication is no
longer necessary to provide meaningful transparency or oversight, or
effective administration of agency-specific excepted-service
authorities. Agency-specific authorities do not have general
applicability across the Government and historically have not been
codified in the CFR. OPM has instead used notices to inform the public
of the existence and status of these authorities. The annual
consolidated notice is a more complete and useful transparency
mechanism because it provides a single authoritative listing of agency-
specific authorities, with assigned authority numbers or other unique
identifiers, rather than requiring agencies, applicants, employees, and
the public to reconstruct the current state of agency-specific
authorities from a series of monthly notices. OPM's annual consolidated
notices have historically served this function by identifying the
agency-specific authorities current as of a specified date and
explaining that governmentwide authorities are codified in the CFR
while agency-specific authorities are not.
OPM believes that the annual consolidated Federal Register notice
satisfies Civil Service Rule VI because Rule VI requires Federal
Register publication of notice of OPM's decision granting authority to
make excepted-service appointments, but does not prescribe monthly
publication. Further, proposed Sec. 213.103(b) would continue to
provide public Federal Register notice of all current agency-specific
authorities in a single consolidated
[[Page 59078]]
annual notice, with additional notices available when OPM determines
they would promote sound administration or public transparency.
OPM notes that removing the monthly publication requirement does
not reduce OPM's substantive oversight of agency-specific authorities.
OPM will continue to approve, deny, limit, condition, modify, or revoke
agency-specific authorities as appropriate under Civil Service Rule VI,
part 213, and applicable Executive orders. Agencies must continue to
use the proper authority number or unique identifier when documenting
appointments, and OPM will continue to maintain internal records of
current agency-specific authorities. In addition, OPM is proposing that
it may publish additional notices concerning agency-specific
authorities when OPM determines that additional notice would promote
sound administration or public transparency.
Proposed Sec. 213.104 would update terminology for temporary,
time-limited, intermittent, or seasonal appointments and clarify
applicable service limits for appointments in Schedules A, B, C, D, and
G. OPM also is not including Schedule E or Schedule Policy/Career in
the operative Sec. 213.104 amendments because these appointments are
not intended to be temporary, time-limited, intermittent, or seasonal.
OPM also proposes targeted amendments to Sec. 213.3102. Proposed
Sec. 213.3102(i)(1) would modernize the Schedule A authority for
positions in remote or isolated locations where examination is
impracticable. Proposed Sec. 213.3102(u) would update the Schedule A
authority for individuals with intellectual disabilities, severe
physical disabilities, or psychiatric disabilities, including by
revising the structure of the provision and proof-of-disability
language.
The proposed rule would amend Sec. 213.3301 to replace the
reference to a Schedule C ``number'' with the phrase ``unique
identifier.'' This change is intended to modernize appointment-record
terminology while preserving OPM's position-specific authorization
process for Schedule C.
The proposed rule would revise Sec. 213.3402(b) to raise the
default Recent Graduates appointment ceiling to GS-11 or equivalent,
while preserving a GS-12 exception for certain scientific and
professional research positions requiring a directly related Ph.D. or
equivalent degree. This revision would conform to the changes made in
the Pathways Programs final regulation published at 89 FR 25751 (Apr.
12, 2024).
The proposed rule would add a new Schedule E heading and new Sec.
213.3501 for ALJ positions appointed under 5 U.S.C. 3105. Proposed
Sec. 213.3501 would provide that new ALJ appointments made on or after
July 10, 2018, must be made under Schedule E; would preserve the
competitive-service status of incumbents whose status is preserved
under Sec. 6.8(d); would exempt Schedule E appointments from part 302
appointment procedures, including examination and rating; would require
agencies to follow veterans' preference as far as administratively
feasible; would cross-reference the professional license requirement in
Civil Service Rule VI and applicable ALJ statutory and regulatory
requirements; and would provide that Schedule E ALJs are not subject to
a trial period under part 11.
Proposed Sec. 213.3601 would revise the Schedule Policy/Career
regulation. Proposed Sec. 213.3601 would revise paragraphs (b) and (c)
to clarify the procedures for making appointments under Schedule
Policy/Career. The language formerly found in paragraph (d) of this
section will be incorporated into paragraph (b). Paragraphs (e) and (f)
of this section will be redesignated as paragraphs (d) and (e) of this
section.
Proposed Sec. 213.3601 would revise the newly designated paragraph
(e) to make clear that Schedule Policy/Career appointments are not
subject to a trial period, in alignment with E.O. 14410's revision to
Civil Service Rule XI. Revised paragraph (e) also would restate that an
individual appointed under Sec. 213.3601(b) in the same manner as an
appointment in the competitive service acquires competitive status
after completing 2 years of continuing service in the same or similar
positions, and would preserve the retention of competitive status under
Sec. 1.3(d) and the acquisition of competitive status under Sec.
3.1(a)(5) or Sec. 6.8(e).
Proposed Sec. 213.3601(f) would address positions in statutory
personnel systems outside title 5 that may be designated as Schedule
Policy/Career. The proposed paragraph would provide that, to the extent
permitted by the statute governing the position and any applicable
E.O., such a position may be designated as Schedule Policy/Career if
the position is of a confidential, policy-determining, policy-making,
or policy-advocating character. For positions otherwise covered by
chapters 23, 43, or 75 of title 5, designation in Schedule Policy/
Career would affect coverage under those chapters to the extent
provided by 5 U.S.C. 2302(a)(2)(B)(i), 4301(2)(G), 4303(e)(3), and
7511(b)(2), and applicable implementing regulations. The designation
would not otherwise alter the governing statutory personnel system
unless expressly provided by statute, E.O., or regulation.
Finally, the proposed rule would add a new Schedule G heading and
new Sec. 213.3701 for noncareer positions of a policy-making or
policy-advocating character normally subject to change as a result of a
Presidential transition. Section 213.3701 would retain OPM's position-
specific authorization process and would require a unique identifier
for positions authorized under Schedule G.
B. Part 302--Employment in the Excepted Service
OPM proposes to revise part 302 extensively. Proposed part 302
would replace the current employment-list and order-of-consideration
structure with a simpler framework that preserves the substantive
requirements of 5 U.S.C. 3320. Section 3320 requires excepted service
selections to be made from qualified applicants ``in the same manner
and under the same conditions'' required for the competitive service by
5 U.S.C. 3308 through 3319, but it does not require OPM to retain the
specific legacy labels and procedures in current part 302, such as
regular employment lists or Orders A, B, and C. Although section 3320
incorporates the competitive-service requirements of 5 U.S.C. 3308
through 3319, current Sec. 302.302(b)(2) also permits category rating
consistent with the principles of 5 U.S.C. 3319, and proposed
Sec. Sec. 302.201(b), 302.302(d), and 302.401(c) would continue to
permit category rating, applied with the pass-over protections of 5
U.S.C. 3319(c)(6).
Section 3315(a) of title 5, United States Code, provides that a
preference eligible who has been separated or furloughed without
delinquency or misconduct is entitled, upon request, to have the
individual's name placed on appropriate registers and employment lists
for every position for which the individual's qualifications have been
established, in the order prescribed by 5 U.S.C. 3313. Section 3320
applies that requirement to covered appointments in the excepted
service by requiring selection from qualified applicants in the same
manner and under the same conditions required by 5 U.S.C. 3308 through
3319.
OPM therefore interprets sections 3315 and 3320 as requiring
agencies to preserve the reemployment-priority rights established by
those provisions. OPM does not interpret those statutes, however, as
requiring agencies to retain the particular list architecture or
terminology prescribed by current Sec. 302.303. Current Sec. 302.303
[[Page 59079]]
implements the statutory requirements through three separately
denominated categories: a priority reemployment list, a discretionary
reemployment list, and a regular employment list. Those categories are
an administrative means of implementing the statute; the terms
themselves do not appear in 5 U.S.C. 3315. Section 3315 also does not
prescribe a particular paper or electronic format, database structure,
or personnel-management system through which an agency must maintain
the required information. Section 1302(c) directs OPM to prescribe
regulations administering veterans' preference in the excepted service
and therefore permits OPM to modernize the administrative mechanism
used to carry out the statutory entitlement, provided that the revised
mechanism does not diminish that entitlement.
In subpart A, proposed Sec. 302.101 would restate the coverage of
part 302 for purposes of veterans' preference and compensable-injury
restoration rights, clarify that Senate-confirmed or advice-and-consent
appointments are not covered, and update the list of positions exempt
from part 302 appointment procedures. OPM proposes to add law clerk
trainee positions filled under 5 CFR 213.3102(e) to the list of
positions exempt from the appointment procedures of 5 CFR part 302.
Section 213.3102(e) authorizes time-limited appointments of law clerk
trainees for law school graduates or persons with equivalent experience
pending admission to the bar, while Sec. 213.3102(d) covers attorney
positions. Current Sec. 302.101(c) already exempts attorney positions
from the appointment procedures of part 302, but it does not expressly
identify law clerk trainee positions. Law clerk trainee appointments
are closely related to attorney hiring and often serve as a temporary,
pre-bar status before an individual may be appointed to an attorney
position. OPM therefore proposes to expressly exempt law clerk trainee
positions filled under Sec. 213.3102(e) to provide additional
flexibility in hiring for these positions and to promote consistency
with attorney hiring procedures.
OPM proposes to amend 5 CFR 302.101(c) to add three other
categories of positions to the list exempt from the appointment
procedures of part 302: positions in remote or isolated locations
filled under 5 CFR 213.3102(i)(1), positions in Schedule G, and ALJ
positions in Schedule E. These additions would promote clarity and
consistency by aligning part 302 with appointing authorities and
excepted-service schedules where the application of ordinary part 302
examining, rating, and selection procedures is impracticable,
unnecessary, or inconsistent with the nature of the position. Remote or
isolated location appointments are expressly limited to circumstances
where examination is impracticable; Schedule G positions are policy-
making or policy-advocating positions normally subject to change as a
result of a Presidential transition; and Schedule E ALJ appointments
are already treated under 5 CFR part 6 as not subject to part 302
appointment procedures. In addition, proposed Sec. 302.101(c)(12)
would revise the reemployment exemption in current Sec. 302.101(c)(9)
to remove the redundant requirement limiting the exemption, which is
already reflected in the introductory text to paragraph (c).
OPM proposes to amend 5 CFR 302.101(c)(6) to make clear the
circumstances under which OPM, in consultation with the agency
involved, determines the applicability of part 302 procedures on an
agency-specific exception to the competitive service. Over the years,
this paragraph has had several interpretations. A final rule was
published in October 2020, 85 FR 63191, to clarify the intent of the
provision. However, agencies continue to seek clarification on the
types of positions under paragraph (c)(6) that are exempt from the
appointment procedures of part 302. Rather than identify the positions
by a specific Schedule, OPM proposes to use its general authority to
except positions from the competitive service under Civil Service Rule
VI (5 CFR 6.1) to identify the positions for which an exemption may be
warranted. This amendment will be reflected in this rule under a newly
designated paragraph (c)(8).
The proposed exemptions would not relieve agencies of any
obligation under Sec. 302.101(c) to follow the principle of veterans'
preference as far as administratively feasible or to honor applicable
priority consideration rights.
Proposed Sec. 302.103 would revise the definition of ``person
entitled to priority consideration,'' which currently is limited to
certain individuals recovering from compensable injury who apply for
reappointment within 30 days of the date of cessation of compensation,
to cover any individual entitled to priority consideration under 5
U.S.C. 8151, part 353, Sec. Sec. 302.303 and 302.304, a final order,
or other applicable statute, regulation, or binding legal authority.
Proposed Sec. 302.104 would clarify when agencies must apply the
provisions of part 302 to accord veterans' preference and priority
consideration. Proposed Sec. 302.105 would replace the existing
special agency plan provision with a broader alternative-procedures
rule, allowing agencies to use written alternative procedures that are
applied uniformly, are consistent with merit system principles, and
provide preference eligibles and person entitled to priority
consideration at least as much advantage as the default procedures in
part 302.
Proposed Sec. 302.105(e) would authorize OPM to establish
procedures, consistent with 5 U.S.C. 3317(b), 5 U.S.C. 3318, 5 U.S.C.
3319, 5 U.S.C. 3320, and part 302, for rating, ranking, and selection
of eligible candidates by participating agencies in OPM-administered
cross-government shared hiring actions, including OPM-led pooled hiring
actions under Sec. 302.601. OPM increasingly uses shared hiring
actions to help agencies fill common mission-critical positions across
the Government. The proposed provision would support those actions by
permitting OPM to establish documentation and administration procedures
suited to multi-agency certificates while preserving veterans'
preference, pass-over requirements, and other applicable statutory
protections.
Proposed Sec. 302.106 would retain the requirement in current
Sec. 302.106 that an excepted service vacancy announcement include a
reasonable accommodation statement that complies with part 330, subpart
A. Proposed Sec. 302.106 also would clarify that part 302 does not
itself require an agency to issue a public vacancy announcement unless
public notice is required by statute, regulation, the applicable
appointing authority, or agency policy, and would require an
announcement for a position covered by part 302 to include, as
applicable, instructions for claiming veterans' preference and priority
consideration.
In subpart B, proposed Sec. 302.201 would modernize the treatment
of veterans' preference under numerical rating, category rating, and
alternative procedures. Proposed Sec. 302.202 would revise
qualification requirements, including by retaining the statutory
limitation on minimum educational requirements for scientific,
technical, or professional positions whose duties cannot be performed
without prescribed education. Proposed Sec. 302.201 would not retain
the separate unranked-referral preference notations in current Sec.
302.201(b) because unranked referral would no longer be a default
evaluation method under proposed Sec. 302.302; an agency could adopt a
comparable approach only through an alternative procedure under
proposed Sec. 302.105 that provides preference eligibles and
[[Page 59080]]
persons entitled to priority consideration at least as much advantage
as the default procedures of part 302.
In subpart C, proposed Sec. Sec. 302.301 through 302.304 would
replace the various employment lists and order-of-consideration
framework with a simplified model. Proposed Sec. 302.303 eliminates
the requirement for agencies to establish priority reemployment lists,
by geographic area, consisting of priority candidates who had been
rated eligible for positions being filled. Instead, priority candidates
would apply for consideration for vacancies on a case-by-case basis
similar to the requirements for receiving consideration under the
career transition programs in part 330 of this chapter. Proposed Sec.
302.303 also includes a requirement that each agency maintain
documented priority-consideration procedures and records sufficient to
demonstrate compliance with proposed Sec. Sec. 302.303 and 302.304.
Proposed Sec. 302.303 would continue to require agencies to provide
priority consideration for specified current or former employees,
including preference-eligible employees furloughed or separated from
continuing excepted service appointments by RIF or similar workforce
reduction action, and current or former employees entitled to priority
consideration because of recovery from compensable injury or
disability. In addition, the proposal would include any other
individual entitled to reemployment priority under statute, regulation,
final order, or other binding legal authority.
Under proposed Sec. 302.303(a), an agency would be required to
maintain documented procedures sufficient to identify, notify,
evaluate, and consider priority candidates for positions covered by
part 302. Although an agency would no longer be required to maintain
separate records designated as a priority reemployment list,
reemployment list, or regular employment list, it would be required to
maintain records sufficient to document compliance with Sec. Sec.
302.303 and 302.304. Under proposed Sec. 302.303(f), each agency's
written procedures would be required to address, at a minimum: how
individuals, including preference eligibles covered by 5 U.S.C. 3315,
may apply for priority consideration for specific vacancies; how
individuals may update their availability, location, qualification,
grade, pay level, work schedule, and other placement information; how
the agency will determine whether an individual is a priority candidate
for a specific vacancy; how the agency will evaluate and rank priority
candidates and apply veterans' preference among them; and how the
agency will notify priority candidates of the outcome of consideration.
An agency could administer these requirements through a standing
electronic registry, an automated vacancy-matching system, vacancy-
specific rosters, or another documented mechanism, provided that the
mechanism satisfies Sec. Sec. 302.303 and 302.304.
For purposes of 5 U.S.C. 3315, the records an agency maintains
under proposed Sec. 302.303(a) and (f)--which must be sufficient to
identify each individual entitled to priority consideration and to
determine, for each vacancy, whether the individual is qualified,
available, and within the scope of consideration--would perform the
function of the appropriate registers and employment lists required by
section 3315. When 5 U.S.C. 3318(d) applies, the registered preference
eligibles whom the agency has determined under proposed Sec. Sec.
302.303 and 302.304 to be qualified, available, and within the scope of
consideration for a particular vacancy would constitute the
reemployment list appropriate for the position to be filled. Agencies
would remain required to order and consider covered individuals in
accordance with 5 U.S.C. 3313 and 3318, as applicable, and the
implementing requirements of part 302, including the requirements in
proposed Sec. 302.303(f)(5) and (6) that the agency establish how
priority candidates will be evaluated and ranked and how veterans'
preference will be applied among them, and the requirements in proposed
Sec. 302.304(b) governing selection among priority candidates.
The proposed rule would also preserve the operative consequences of
placement on the statutory register or employment list. Before making a
covered appointment, proposed Sec. 302.304 would require an agency to
determine whether a qualified and available priority candidate is
within the scope of consideration for the vacancy. If one priority
candidate is available, the agency ordinarily would be required to
select that candidate before selecting another applicant. If more than
one priority candidate is available, the agency would be required to
apply the evaluation method established for the vacancy and applicable
veterans' preference requirements, and to select from among the
priority candidates before considering non-priority candidates. An
agency could depart from those requirements only when an exception
authorized by statute, regulation, or other applicable law applies and
the agency documents the basis for the exception.
The proposal therefore does not replace the statutory list
entitlement with generalized or discretionary consideration. Proposed
Sec. 302.303(f) would require each agency to establish its priority-
consideration procedures in advance, including the means by which
individuals may apply for priority consideration and keep their
placement information current; proposed Sec. 302.301(d) would require
the agency, when filling a covered position, to provide a means for
individuals claiming priority consideration to identify their
eligibility and submit the information necessary for the agency to
determine whether they are priority candidates; and proposed Sec.
302.304(a) would require the agency to determine whether a priority
candidate exists before making any covered appointment and, under
proposed Sec. 302.304(f), to document that determination. Maintaining
records only after a selection has been made would not satisfy proposed
Sec. Sec. 302.303 and 302.304 or 5 U.S.C. 3315.
OPM recognizes that 5 U.S.C. 3320 does not permit OPM to substitute
materially lesser protections for procedures that Congress has made
applicable to the excepted service. In Gingery v. Department of
Defense, 550 F.3d 1347, 1352-54 (Fed. Cir. 2008), the Federal Circuit
held that an OPM regulation could not replace the pass-over protections
prescribed by 5 U.S.C. 3318 with lesser protections for an excepted-
service applicant when the statutory procedures could be applied. The
proposed rule follows that principle. It does not rely on a
determination that compliance with 5 U.S.C. 3315 is administratively
infeasible, and it does not reduce the registration, ordering,
referral, selection, or pass-over protections required by 5 U.S.C.
3315, 3318, and 3320. It changes only the administrative form in which
agencies maintain and use the information necessary to provide those
protections.
The proposed approach is also consistent with the flexibility
recognized in current Sec. 302.105, under which an agency may use a
system that does not conform to every procedural requirement of part
302 only if eligible applicants entitled to veterans' preference or
priority consideration receive at least as much advantage as they would
receive under the default procedures. Proposed Sec. 302.105 would
retain that limiting principle and would additionally make clear that
an alternative procedure may not waive any statutory requirement.
[[Page 59081]]
The requirement in current Sec. 302.303 that all other applicants
be entered on a regular employment list presents a different issue.
Section 3315 establishes a specific entitlement for covered preference
eligibles who have been separated or furloughed; it does not
independently require an agency to maintain a separately denominated
regular employment list containing every other applicant. Agencies
would remain required to evaluate, arrange, refer, and select other
applicants in accordance with the applicable provisions of 5 U.S.C.
3308 through 3319 and part 302, but they would not be required to
preserve the current ``regular employment list'' as a separate
administrative artifact. Proposed Sec. 302.304 would require agencies
to consider and select qualified and available priority candidates
before non-priority candidates unless a lawful exception applies.
In subpart D, proposed Sec. 302.401 would set out simplified rules
for selection and appointment after priority consideration has been
satisfied. The proposed rule would replace the existing Sec. 302.401
with a simpler selection rule organized around priority consideration,
the evaluation and referral method used for the vacancy, veterans'
preference and pass-over protections, discontinuance of consideration,
documentation, and special conditions for OPM-led pooled hiring
actions, as set out in proposed Sec. 302.401(a) through (h).
First, proposed Sec. 302.401(a) would require agencies to satisfy
the priority-consideration requirements in proposed Sec. Sec. 302.303
and 302.304 before making any appointment to a position covered by part
302. This makes priority consideration the first step in the selection
process.
Second, proposed Sec. 302.401(b) would govern selections when an
agency uses numerical rating. Agencies could refer candidates using a
method established before applications are solicited and documented in
the recruitment file. The referral method could include a cut-off
score, a set number of the highest-ranked eligible candidates, a set
percentage of the highest-ranked eligible candidates, or another job-
related method consistent with Sec. 302.105. Selecting officials could
select any referred eligible candidate but could not pass over a
higher-standing preference eligible to select a lower-standing
nonpreference eligible unless the agency satisfies the pass-over
requirements in Sec. 302.401(e).
Third, proposed Sec. 302.401(c) would govern selections when an
agency uses category rating. Agencies could select from the highest
quality category. If fewer than three candidates are in the highest
category, the agency could merge the highest and second-highest quality
categories and select from the merged category. Preference eligibles
must be listed ahead of nonpreference eligibles within each category or
merged category, and agencies may not select a nonpreference eligible
over a preference eligible in the same category unless the pass-over
requirements are satisfied.
Fourth, proposed Sec. 302.401(d) would expressly allow agencies to
make selections under alternative procedures authorized by Sec.
302.105. Those procedures must provide preference eligibles and persons
entitled to priority consideration at least as much advantage in
consideration, referral, and selection as they would receive under the
default part 302 procedures.
Fifth, proposed Sec. 302.401(e) would consolidate the rule for
passing over preference eligibles. Agencies proposing to select a
nonpreference eligible over a preference eligible must comply with
applicable requirements in 5 U.S.C. 3318(c), 5 U.S.C. 3319(c)(6), and
OPM instructions.
Sixth, proposed Sec. 302.401(f) would address discontinuing
consideration of an eligible candidate as authorized by 5 U.S.C.
3318(e), Sec. 302.105(e), or other applicable law, in accordance with
the procedures set forth in Sec. 332.405, which implements the three-
consideration rule of 5 U.S.C. 3318(e).
Seventh, proposed Sec. 302.401(g) would add a documentation
requirement. Agencies must document the selection method used, the
application of veterans' preference, the application of priority
consideration, any pass-over decision, and the basis for selection. The
documentation must be sufficient to permit reconstruction or third-
party review.
Eighth, proposed Sec. 302.401(h) would establish special
conditions for OPM-led pooled hiring actions, including when OPM may
discontinue the consideration of a candidate from a shared certificate
after documented bona fide consideration for three separate
appointments for the same position. Nothing in those provisions would
authorize passing over a preference eligible except as permitted by
Sec. 302.401(e) and applicable law. These conditions would apply to
OPM-led pooled hiring actions under Sec. 302.601, as added by OPM's
interim rule on shared certificates and OPM-led pooled hiring actions
(91 FR 58347), and would supplement, not displace, the three-
consideration provisions of Sec. Sec. 302.502(b), 302.603(d), and
302.604(e).
The proposed rule would also revise Sec. 302.402 to preserve a
streamlined reappointment option while making clear that it cannot be
used to bypass the new priority-consideration framework. Proposed Sec.
302.402(a) would allow an agency, subject to Sec. Sec. 302.303 and
302.304, to reappoint a current or former nontemporary executive-branch
employee who is a preference eligible to a covered position without
applying the examination, rating, ranking, and referral procedures of
part 302. Proposed Sec. 302.402(b) would clarify that this
reappointment authority does not permit an agency to bypass a qualified
and available person entitled to priority consideration unless a lawful
exception under Sec. 302.304 applies. Proposed Sec. 302.402(c) would
further clarify that any reappointment must still be consistent with
statute, regulation, the applicable appointing authority, and agency
reemployment policy.
Proposed Sec. Sec. 302.201, 302.302, and 302.401 would continue to
apply the same statutory veterans' preference protections through the
rating method used for the vacancy: preference points would be added
when numerical rating is used; preference eligibles would receive the
statutory ordering and placement advantages when category rating is
used; and any alternative procedure would have to provide preference
eligibles and persons entitled to priority consideration at least as
much advantage in evaluation, referral, and selection as the default
procedures in part 302. The proposed rule also would preserve
applicable pass-over requirements before an agency may select a
nonpreference eligible over a preference eligible. Accordingly, OPM
views the proposed framework as a modernization of the mechanics for
accepting, evaluating, referring, and selecting applicants, not a
reduction in the veterans' preference and related protections required
by 5 U.S.C. 3320.
Proposed Sec. 302.701 would update the appeals provision for
individuals asserting compensable-injury restoration rights. The
proposed amendment would clarify that the relevant restoration or
priority-consideration entitlement may arise under 5 U.S.C. 8151, part
353, or part 302, while preserving the existing limitation that an
appeal must involve an alleged violation of restoration rights and
factual information showing that the individual was denied restoration
or priority consideration because another person was employed. Proposed
Sec. 302.701 also would clarify that a preference eligible or person
entitled to priority consideration may appeal an action taken under
part 302 only to the extent an appeal right is provided by
[[Page 59082]]
statute, Merit Systems Protection Board (MSPB) regulation, or other
applicable law, and that part 302 does not create an appeal right not
otherwise provided by law.
OPM's interim rule on shared certificates and OPM-led pooled hiring
actions redesignated subpart E of part 302 (Appeals) as subpart G and
added new subparts E and F governing shared excepted service
certificates and OPM-led pooled hiring actions. The references in this
proposed rule reflect that redesignation, and, apart from the
conforming cross-reference amendments described below, nothing in this
proposed rule would alter the new subparts E and F. This proposal would
correct the authority citation for part 302 to include 5 U.S.C. 1104
and the section-specific authority for subparts E and F, which were
inadvertently not included in the interim rule.
Consistent with the paragraph designations proposed for Sec. Sec.
302.302 and 302.401, OPM proposes conforming amendments to the cross-
references in subparts E and F. Proposed Sec. Sec. 302.502(b),
302.603(d), and 302.604(e) would replace the references to Sec.
302.302(b)(1) and Sec. 302.302(b)(2) with references to Sec.
302.302(c) and Sec. 302.302(d), respectively, and proposed Sec. Sec.
302.603(e) and 302.604(f) would replace the reference to Sec.
302.401(b) with a reference to Sec. 302.401(e). These conforming
amendments would align the cross-references with the redesignated
paragraphs proposed in this rule and would not alter the three-
consideration or pass-over requirements those provisions impose.
OPM is not proposing changes to Sec. Sec. 302.102, 302.107,
302.108, 302.203, or 302.403. Those provisions address related but
distinct requirements that remain necessary under the proposed part 302
framework.
C. Part 317--Employment in the Senior Executive Service
In part 317, OPM proposes to amend provisions governing conversion
to the Senior Executive Service (SES), Qualifications Review Board
certification, and SES reassignments. The proposed amendments would
clarify that Schedule G service would be treated consistently with
Schedule C service when identifying noncareer-type or transition-linked
service. Specifically, OPM proposes to amend Sec. Sec. 317.304 and
317.305 to include Schedule G in the provisions governing conversion of
certain appointees to SES appointments; Sec. 317.502 to include
Schedule G appointees within the category of ``noncareer-type''
employees whose conversion to career SES appointment would not be
forwarded to a Qualifications Review Board; and Sec. 317.901 to
include Schedule G appointees in the definition of noncareer appointee
for purposes of the 120-day restriction on involuntary reassignment of
career SES appointees.
D. Part 359--Removal From the Senior Executive Service; Guaranteed
Placement in Other Personnel Systems
In part 359, OPM proposes to amend Sec. Sec. 359.406 and 359.503
to include Schedule G appointees in the definition of noncareer
appointee for purposes of restrictions on certain SES removals
following the appointment of a new agency head or certain noncareer
supervisors. OPM also proposes to amend Sec. 359.701 to clarify that
service in a Schedule G position, or in a position meeting the same
criteria as a Schedule G position, would not constitute an appointment
of equivalent tenure for purposes of guaranteed placement rights
following certain removals from the SES.
E. Part 362--Pathways Programs
OPM proposes to revise part 362 to permit eligible Pathways
Participants to be converted to permanent positions in Schedule Policy/
Career. OPM also proposes to eliminate the definition of ``advanced
degree'' in Sec. 362.102 because the phrase is no longer used in part
362.
Proposed Sec. 362.107 would be revised to describe conversion to
the competitive service or Schedule Policy/Career. It would authorize
noncompetitive conversion of an eligible Pathways Participant to a term
or permanent position in the competitive service, or to a permanent
position in Schedule Policy/Career if the position is a career position
described in Sec. 213.3601(a) and the conversion is authorized by part
362 and applicable OPM policy or guidance. The proposed section would
distinguish direct conversion to a competitive-service position from
conversion to Schedule Policy/Career. It would clarify that conversion
to Schedule Policy/Career does not itself confer competitive status,
career tenure, or a career or career-conditional appointment and that
pre-conversion Pathways service does not count toward the 2 years of
continuing Schedule Policy/Career service required for acquisition of
competitive status under Sec. 213.3601(e).
Proposed Sec. 362.107 also would address career-transition
programs, probationary periods, trial periods, and no-entitlement
principles. Pathways Participants converted to career or career-
conditional appointments under Sec. 315.713 would be subject to
applicable probationary-period requirements under part 11 and would
acquire competitive status upon completion of those requirements.
Pathways Participants converted to permanent Schedule Policy/Career
appointments would not be required to serve a trial period under part
11 and would obtain competitive status after 2 years of continuing
service in the Schedule Policy/Career position, but that conversion
would not itself confer competitive status. Competitive status could be
retained or acquired only as provided in Sec. 213.3601(e), Sec.
362.107(f), Sec. 3.1(a)(5), Sec. 6.8(e), part 315, or another
applicable statute, E.O., civil service rule, or OPM regulation.
The proposed rule also would revise Pathways reporting requirements
to capture the number of Pathways Participants converted to Schedule
Policy/Career and separated and would add Sec. 362.110 to authorize
OPM to develop and administer a governmentwide Pathways Leadership
Development Program under the Recent Graduates Program authority. That
program may include formal training, career development, and rotational
assignments across participating agencies, and would be administered
consistent with part 362 and applicable OPM implementing instructions.
F. Part 432--Performance Based Reduction in Grade and Removal Actions
OPM proposes to amend Sec. 432.102(f)(11), as redesignated by
OPM's final rule on probationary and trial period appeals (91 FR 49072,
Aug. 3, 2026), to add employees occupying positions in Schedule G to
the categories of employees excluded from coverage under part 432. Part
432 implements the procedures governing performance-based reductions in
grade and removals under 5 U.S.C. chapter 43. Section 432.102(f)(11)
currently excludes employees occupying positions in Schedule C or
Schedule Policy/Career, as authorized under part 213 of this chapter.
This amendment would add Schedule G to that same exclusion.
This change is a conforming amendment to reflect the establishment
of Schedule G in the excepted service. E.O. 14317 created Schedule G
for positions of a policy-making or policy-advocating character that
are normally subject to change as a result of a Presidential transition
and directed OPM to adopt implementing regulations, with particular
attention to amendments to 5 CFR part 213. E.O. 14317 also amended
Civil Service Rule VI to provide that, except as required by statute,
the Civil Service Rules and
[[Page 59083]]
Regulations do not apply to removals from positions listed in Schedule
G.
Consistent with that framework, OPM proposes that employees
occupying Schedule G positions should be treated in the same manner as
employees occupying Schedule C and Schedule Policy/Career positions for
purposes of part 432 coverage. The amendment would clarify that the
performance-based reduction in grade and removal procedures in part 432
do not apply to employees occupying positions in Schedule G. The
amendment would not otherwise alter the coverage of part 432, and
employees not expressly excluded under Sec. 432.102(f) would remain
covered in accordance with that section.
G. Part 550--Pay Administration (General)
In part 550, OPM is proposing to amend the definition of
``nonqualifying appointment'' in Sec. 550.703 to include an excepted
appointment under Schedule G. This change would align the definition of
``nonqualifying appointment'' with the existing definition of
``qualifying appointment,'' which excludes excepted appointments
without time limitation under Schedule C or Schedule G.
H. Part 731 (Suitability and Fitness) and Part 920 (Timing of Criminal
History Inquiries)
In parts 731 and 920, OPM proposes to amend the definition of
``political appointment'' to include appointments under Schedule G.
These changes would ensure that Schedule G appointees are treated
consistently with other political appointees for purposes of
suitability and fitness regulations in part 731 and the timing of
criminal history inquiries in part 920.
I. Part 930--Administrative Law Judge Program
OPM proposes to amend part 930, subpart B, to conform the
Administrative Law Judge Program regulations to Schedule E. Current
part 930, subpart B, retains provisions tied to competitive
examination, lists of eligibles, and career appointments. The proposed
amendments would revise those provisions to recognize that new ALJ
appointments are made under Schedule E, remove or reserve the rule on
cost of competitive examination, revise appointment provisions, update
incumbent and reappointment provisions, revise promotion provisions,
and remove references to positions being filled through competitive
examination. The proposed amendments would preserve applicable ALJ
statutory protections, including those under 5 U.S.C. 3105 and 7521.
OPM proposes to revise Sec. 930.210 to conform the ALJ RIF
regulation to the current status of ALJ positions. Effective July 10,
2018, ALJ positions appointed under 5 U.S.C. 3105 were placed in
Schedule E of the excepted service, while incumbents who were in the
competitive service on that date retain competitive-service status so
long as they remain in their current positions. Current Sec. 930.210
was written against the prior competitive-service ALJ framework and
provides ALJs both agency RPL placement assistance and placement on
OPM's ALJ priority referral list. The proposed revision would
distinguish between legacy competitive-service ALJs whose status is
preserved under Sec. 6.8(d) and ALJs appointed in Schedule E after
July 10, 2018.
Under proposed Sec. 930.210(a), ALJs would remain subject to the
RIF regulations in part 351, except as modified by Sec. 930.210.
Schedule E ALJs would compete as excepted-service employees if
otherwise covered by part 351, while ALJs whose competitive-service
status is preserved under Sec. 6.8(d) would continue to be treated as
competitive-service employees for RIF purposes. This distinction
reflects the current legal structure of ALJ appointments and avoids
treating post-July 10, 2018 Schedule E ALJs as if they remained in the
competitive service.
Proposed Sec. 930.210(b) would also update the rule for
determining ALJ retention standing. Because agencies may not rate the
job performance of ALJs under Sec. 930.206, agencies may not prepare,
assign, or use an ALJ performance rating for RIF purposes. The proposed
rule would instead require agencies to determine ALJ performance credit
in accordance with the rules in part 351 governing employees who do not
have ratings of record. This approach preserves the prohibition on ALJ
performance ratings while allowing ALJs to be placed on retention
registers under the RIF framework. Section 3502 requires OPM to
prescribe RIF regulations that give due effect to tenure, military
preference, length of service, and efficiency or performance ratings;
the proposed rule applies that framework to ALJs without requiring
agencies to create ALJ ratings where another regulation prohibits them.
Proposed Sec. 930.210(c) would clarify assignment rights.
Competitive-service employees receive assignment rights under Sec.
351.701, but excepted-service assignment rights are discretionary under
Sec. 351.705 and may be provided only under agency procedures that are
consistent with part 351 and uniformly applied in the RIF. Accordingly,
proposed Sec. 930.210(c) would provide that Schedule E ALJs do not
have mandatory assignment rights under Sec. 351.701. An agency may, in
its discretion, provide Schedule E ALJs assignment rights under Sec.
351.705, but if the agency does not do so, it may release a Schedule E
ALJ from the competitive level in accordance with the order of release
under part 351 without offering assignment to another position. By
contrast, an ALJ whose competitive-service status is preserved under
Sec. 6.8(d) would remain subject to the competitive-service
assignment-right provisions in Sec. 351.701 while that status remains
preserved.
Proposed Sec. 930.210(d) would revise ALJ placement-assistance
provisions. Under current 5 CFR part 330, the RPL is a required
placement program for current and former competitive-service employees
who will be or were separated by RIF or who recovered from compensable
injury after more than one year. Accordingly, proposed Sec.
930.210(d)(1) would provide that an ALJ in the competitive service
whose status is preserved under Sec. 6.8(d) remains eligible for RPL
placement assistance under part 330 if reached in a RIF and issued a
separation notice.
For Schedule E ALJs, proposed Sec. 930.210(d)(2) would clarify
that a Schedule E ALJ who is separated, furloughed, or demoted by RIF
does not, solely by virtue of service in a Schedule E ALJ position or
appointment under 5 U.S.C. 3105, have a statutory entitlement to
priority consideration, priority referral, or reemployment as an ALJ.
This treatment aligns Schedule E ALJs with other excepted-service
employees separated by RIF. Under current OPM regulations, excepted
service employees separated or furloughed from continuing appointments
generally do not have a mandatory priority reemployment entitlement.
Current Sec. 302.303 requires a priority reemployment list for certain
categories, including preference-eligible former employees separated or
furloughed from continuing appointments without delinquency or
misconduct and certain compensable-injury cases, while agency priority
consideration for nonpreference eligibles separated or furloughed from
continuing appointments is discretionary.
Thus, the proposed rule would treat Schedule E ALJs like similarly
situated excepted-service employees: a Schedule E ALJ would not receive
a mandatory priority reemployment list or priority-
[[Page 59084]]
referral entitlement merely because the position is an ALJ position,
but the individual would retain any priority, restoration, or placement
right that arises from another source of law. Proposed Sec.
930.210(d)(3) would expressly preserve rights under 5 U.S.C. 8151, part
353, 5 U.S.C. 3315, 5 U.S.C. 3320, the Uniformed Services Employment
and Reemployment Rights Act (USERRA), a final order, or another
applicable statute, regulation, or binding legal authority. This
savings clause is intended to ensure, for example, that a preference-
eligible Schedule E ALJ or an ALJ with compensable-injury restoration
rights receives any priority consideration required by the applicable
authority.
OPM also proposes to remove the current mandatory ALJ-specific OPM
priority referral list as a regulatory entitlement for Schedule E ALJs.
OPM has determined that this special list is no longer necessary as a
mandatory rule for employees appointed under Schedule E, particularly
because Schedule E ALJs are now part of the excepted service and
because current law does not provide an ALJ-specific statutory
reemployment entitlement after a RIF. Section 7521 provides special
good-cause protections for certain actions against ALJs, but expressly
excludes RIF actions under 5 U.S.C. 3502 from those procedures. RIF
actions involving ALJs are therefore governed by part 351 and Sec.
930.210, not by the good-cause procedures applicable to disciplinary or
adverse actions against ALJs. As a conforming change, OPM also proposes
to remove Sec. 930.201(e)(9), which describes OPM's authority to
maintain and administer the ALJ priority referral program under Sec.
930.210(c) and to redesignate the remaining paragraphs of Sec.
930.201(e) accordingly.
Finally, proposed Sec. 930.210(d)(4) would preserve flexibility
for OPM or agencies to establish discretionary placement-assistance
procedures for ALJs separated, furloughed, or demoted by RIF. Any such
discretionary procedure would have to be in writing and identify its
coverage, duration, order of consideration, geographic scope,
qualification requirements, and termination conditions. The proposed
rule would also clarify that discretionary placement assistance does
not create a statutory entitlement to priority consideration, priority
referral, or reemployment. This approach preserves agency and OPM
flexibility to provide additional assistance where appropriate, while
aligning mandatory reemployment-priority rights for Schedule E ALJs
with the treatment of other excepted-service employees under current
OPM regulations.
Proposed Sec. 930.211(c)(3) would conform the ALJ adverse-action
regulation by clarifying that Sec. 930.211 does not apply to RIF
actions taken under 5 U.S.C. 3502, part 351, and Sec. 930.210. This
change preserves the distinction between ALJ disciplinary or adverse
actions governed by 5 U.S.C. 7521 and RIF actions governed by 5 U.S.C.
3502, part 351, and Sec. 930.210.
III. Requests for Comment
OPM requests comment on all aspects of this proposed rule. OPM is
especially interested in comments on the following issues.
A. Governmentwide Schedule A and Schedule B Authorities That May Be
Obsolete, Duplicative, or Better Handled Differently
OPM requests comment on whether the following governmentwide
Schedule A authorities in Sec. 213.3102 remain necessary; whether any
should be removed, reserved, consolidated with another authority, or
converted to agency-specific Schedule A authorities; and whether
agencies currently rely on these authorities for mission-critical
hiring:
Sec. 213.3102(l)--temporary or intermittent professional,
scientific, or technical experts for consultation purposes;
Sec. 213.3102(n)--local physicians, surgeons, or dentists employed
under contract or on a part-time or fee basis;
Sec. 213.3102(o)--scientific, professional, or analytical
positions filled by bona fide faculty members of accredited colleges or
universities with special qualifications, with employment limited to
130 working days per year;
Sec. 213.3102(x) --positions filled by inmates of penal or
correctional institutions under work-release programs where a local
recruiting shortage exists;
Sec. 213.3102(aa)--temporary scientific and professional research
associate positions at GS-11 and above filled through the National
Research Council post-doctoral research associate program; and
Sec. 213.3102(ff)--not more than 24 positions filled under an
agreement between OPM and the Department of Justice (DOJ) by persons in
programs administered by the Attorney General under Public Law 91-452
and related statutes.
Current Sec. 213.3102 includes these authorities, including the
expert/consultant, local physician/surgeon/dentist, faculty, work-
release, National Research Council associate, and DOJ program
authorities. OPM also requests comment on whether any of these
authorities overlap with other statutory or regulatory hiring
authorities, whether agencies continue to use them, and whether any
program-specific authority should be narrowed, modernized, or moved
from a governmentwide authority to an agency-specific authority.
OPM also requests comment on whether the governmentwide Schedule B
authority in Sec. 213.3202(n) remains necessary. That provision
applies to positions filled by preference eligibles or veterans
separated under honorable conditions after three or more years of
continuous active military service who applied under merit-promotion
procedures when applications were accepted from outside the agency's
own workforce; the regulation states that no new appointments may be
made under this authority after November 30, 1999. OPM requests comment
on whether this authority should be removed and reserved, retained only
for legacy status purposes, revised, or addressed through another
regulatory mechanism.
OPM may, in a final rule, remove, reserve, consolidate, or narrow
any of the identified authorities based on comments received, and
interested parties should comment now if they rely on any of these
authorities and would be affected by such action. Also, OPM requests
that agencies identify any current employees, mission-critical hiring
pipelines, workforce-planning needs, or legal obligations that would be
affected if any of these authorities were removed, reserved,
consolidated, narrowed, or converted to agency-specific authority.
B. Additional Schedule A Authorities That May Warrant Exemption From
Part 302 Appointment Procedures
Proposed Sec. 302.101(c) would update the list of positions exempt
from the appointment procedures of part 302 while preserving the
principle of veterans' preference as far as administratively feasible
and preserving legally required restoration and priority-consideration
rights. OPM requests comment on whether additional governmentwide
Schedule A appointing authorities should be exempt from part 302
appointment procedures.
C. Priority Consideration Framework in Part 302/Reliance Interests
OPM requests comment on whether the proposed priority-consideration
framework in Sec. Sec. 302.303 and 302.304 adequately preserves rights
of employees who are furloughed, separated by RIF or similar workforce
[[Page 59085]]
reduction action, or entitled to restoration or priority consideration
because of recovery from compensable injury. OPM also requests comment
on whether the proposed framework provides sufficient flexibility for
agencies while preserving veterans' preference and legally required
restoration and priority-placement rights.
OPM requests comment on whether the proposed rule, if finalized,
should apply only to vacancies announced on or after the effective
date, and how agencies should treat pending recruitment actions,
existing employment lists, certificates, priority reemployment lists,
and agency plans established under current part 302.
OPM further requests comment on any reliance interests implicated
by the proposed rule and will address them with particularity in any
final rule that it issues.
IV. Expected Impact of This Proposed Rule
A. Statement of Need
OPM is issuing this proposed rule to modernize and clarify the
regulations governing appointments in the excepted service while
preserving the statutory protections required by 5 U.S.C. 3320. Current
part 302 relies on legacy employment-list and order-of-consideration
procedures that are more complex than necessary to implement the
veterans' preference, rating, ranking, referral, and pass-over
requirements incorporated by 5 U.S.C. 3320. This proposed rule would
replace those procedures with a simpler, more transparent framework
that allows agencies to use numerical rating, category rating, or other
job-related procedures consistent with 5 U.S.C. 3308 through 3319,
while continuing to protect veterans' preference, compensable-injury
restoration rights, and other legally required priority-placement
rights. The rule is also needed to conform OPM's regulations to current
excepted-service schedules and related Executive orders, including
provisions governing Schedule E, Schedule G, Schedule Policy/Career,
Pathways conversions, career-transition exceptions, merit-promotion
rules, and ALJ appointments.
B. Impact
This proposed rule would primarily affect Federal agencies and
Federal applicants or employees subject to the covered excepted service
appointment authorities. OPM expects the rule to reduce administrative
burden by simplifying part 302 appointment procedures and eliminating
legacy employment-list and order-of-consideration structures. Agencies
would retain responsibility for applying veterans' preference,
establishing job-related qualification requirements, identifying and
clearing priority candidates, documenting selection decisions, and
complying with restoration rights and other applicable law.
OPM expects the conforming amendments to part 213, part 317, part
359, part 362, part 432, part 550, part 731, part 920, and part 930 to
improve regulatory clarity by aligning the CFR with current Executive
orders, Pathways conversion policy, Schedule Policy/Career
implementation, Schedule G, and Schedule E ALJ appointments. OPM
requests comment on the expected implementation costs and benefits of
these changes, including any costs associated with revising agency
excepted service hiring procedures, updating human resources (HR)
systems and personnel-action coding, training HR staff and selecting
officials, and documenting priority-consideration and veterans'
preference determinations.
C. Regulatory Alternatives
OPM considered retaining the current part 302 framework but
rejected that approach because the existing procedures are more complex
than necessary to implement the statutory requirements governing
veterans' preference and excepted service appointments. OPM also
considered preserving the employment-list and order-of-consideration
terminology while simplifying specific provisions, but concluded that a
more direct priority-consideration model would be clearer for agencies
and applicants and would better align part 302 with modern hiring
practices.
OPM further considered whether to address Schedule E, Schedule G,
Schedule Policy/Career, Pathways conversions, and ALJ conforming
amendments in separate rulemakings. OPM proposes to address them
together because the provisions interact across parts 213, 302, 317,
359, 362, 432, 550, 731, 920, and 930. Addressing them in a single
rulemaking promotes consistency and reduces the risk of conflicting
regulatory text.
D. Costs
This proposed rule, once finalized, will affect the operations of
approximately 80 Federal agencies--ranging from cabinet-level
departments to small independent agencies. OPM will provide guidance on
implementing this proposed rule in the form of a fact sheet or
frequently asked questions. OPM estimates that this rulemaking will
require individuals employed by these agencies to modify policies and
procedures to implement the rulemaking and train HR practitioners and
hiring managers on its use. For this cost analysis, OPM assumed an
average salary rate of Federal employees performing this work using the
rate in 2025 for GS-14, step 5, from the Washington, DC, locality pay
table ($161,486 annual locality rate and $77.38 hourly locality rate).
We assumed 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 $154.76 per hour. To comply with
the regulatory changes in the proposed rule, affected agencies will
need to review the rule and update their policies and procedures. We
estimate that, in the first year following publication of any final
rule, doing so will require an average of 100 hours of work by
employees per agency with an average hourly cost of $154.76. This work
would result in estimated costs in that first year of implementation of
about $15,476 per agency, and about $1,238,080 in total governmentwide.
Some agencies may incur additional costs because they have to establish
excepted service employment policies where none have existed. 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 streamlining existing procedures and processes.
E. Benefits
OPM expects this proposed rule to improve the clarity, consistency,
and administrability of excepted service hiring regulations. The
proposal would replace legacy employment-list and order-of-
consideration procedures in part 302 with a more direct framework for
identifying qualified applicants, applying veterans' preference,
clearing priority candidates, documenting selection decisions, and
preserving restoration and other legally required placement rights.
This simplified structure should reduce agency burden, make excepted-
service hiring procedures easier for HR staff and selecting officials
to apply, and improve transparency for applicants and employees. The
proposed amendments to parts 213, 317, 359, 362, 432, 550, 731, 920,
and 930 would also align OPM's regulations with current excepted-
service schedules, Pathways
[[Page 59086]]
conversion rules, Schedule Policy/Career implementation, Schedule G,
and Schedule E ALJ appointments, reducing ambiguity and the risk of
inconsistent agency application. Overall, OPM expects the rule to
support faster and more reliable hiring administration while preserving
the statutory protections that apply to excepted service appointments.
F. Severability
If any provision of this rule is held to be invalid or
unenforceable by its terms, or as applied to any person or
circumstance, OPM intends that it shall be severable from its
respective section(s) and shall not affect the remainder thereof or the
application of the provision to other persons not similarly situated or
to other dissimilar circumstances, unless such holding is that the
provision is invalid and unenforceable in all circumstances, in which
event the provision shall be severable from the remainder of this part
and shall not affect the remainder thereof. Should provisions related
to one of the sections be held to be invalid we believe that the other
sections should be severable and would not be impacted.
V. Regulatory Compliance
1. Regulatory Review
OPM has examined the impact of this rule as required by E.O.s 12866
and 13563, which direct 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). A regulatory impact analysis must be
prepared for rules that have an annual effect on the economy of $100
million or more or adversely affect in a material way the economy, a
sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or tribal
governments or communities. This rulemaking does not reach that
threshold but has otherwise been designated as a ``significant
regulatory action'' under section 3(f) of E.O. 12866, as supplemented
by E.O. 13563. This rulemaking is not expected to be considered an E.O.
14192 regulatory action because it imposes no more than de minimis
costs.
2. 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.
3. Federalism
OPM has examined this proposed rule under E.O. 13132 and has
determined that it will not have substantial direct effects on the
States, on the relationship between the National Government and the
States, or on the distribution of power and responsibilities among the
various levels of government.
4. Civil Justice Reform
This rule meets the applicable standard set forth in section 3(a)
and (b)(2) of E.O. 12988.
5. Unfunded Mandates Reform Act of 1995
Section 202 of the Unfunded Mandates Reform Act of 1995 requires
that agencies assess anticipated costs and benefits before issuing any
rule that would impose spending costs on State, local, or tribal
governments in the aggregate, or on the private sector, in any 1 year
of $100 million in 1995 dollars, updated annually for inflation. That
threshold is currently approximately $193 million. This rulemaking will
not result in the expenditure by State, local, or tribal governments,
in the aggregate, or by the private sector, in excess of the threshold.
Thus, no written assessment of unfunded mandates is required.
6. Congressional Review Act
OPM will submit the final rule, if issued, to Congress and the
Comptroller General under 5 U.S.C. 801. OPM has preliminarily
determined that this proposed rule would not be a ``major rule'' as
defined in 5 U.S.C. 804(2).
7. Paperwork Reduction Act (PRA)
This proposed rule does not impose a new collection of information
from the public within the meaning of the Paperwork Reduction Act of
1995, as amended (44 U.S.C. 3501 et seq.). The proposed rule primarily
governs internal Federal agency personnel procedures, documentation,
and administration. Notwithstanding any other provision of law, no
person is required to respond to, nor shall any person be subject to a
penalty for failure to comply with, a collection of information subject
to the requirements of the PRA unless that collection of information
displays a currently valid Office of Management and Budget (OMB)
Control Number.
List of Subjects
5 CFR Part 213
Government employees, Reporting and recordkeeping requirements.
5 CFR Part 302
Administrative practice and procedure, Authority delegations
(Government agencies), Government contracts, Government employees,
Investigations.
5 CFR Part 317
Administrative practice and procedure, Government employees.
5 CFR Part 359
Government employees.
5 CFR Part 362
Administrative practice and procedure, Colleges and universities,
Government employees.
5 CFR Part 432
Government employees.
5 CFR Part 550
Administrative practice and procedure, Claims, Government
employees, Wages.
5 CFR Part 731
Administrative practice and procedure, Authority delegations
(Government agencies), Government contracts, Government employees,
Investigations.
5 CFR Part 920
Administrative practice and procedure, Government employees.
5 CFR Part 930
Administrative practice and procedure, Computer technology,
Government employees, Motor vehicles.
Office of Personnel Management.
Alexys Stanley,
Federal Register Liaison.
Accordingly, for the reasons stated in the preamble, OPM proposes
to amend 5 CFR parts 213, 302, 317, 359, 362, 432, 550, 731, 920, and
930 as follows:
PART 213--EXCEPTED SERVICE
0
1. The authority citation for part 213 is revised to read as follows:
Authority: 5 U.S.C. 3161, 3301, and 3302; 38 U.S.C. 4301 et
seq.; E.O. 10577, 19 FR 7521, 3 CFR, 1954-1958 Comp., p. 218; E.O.
13843, 83 FR 32755; E.O. 14171, 90 FR 8625; E.O. 14317, 90 FR 34753;
E.O. 14410, 91 FR 34893.
Sec. 213.101 also issued under 5 U.S.C. 2103.
Sec. 213.3102 also issued under 5 U.S.C. 3307, 8337(h), and
8456; 38 U.S.C. 4301 et
[[Page 59087]]
seq.; E.O. 12125, 44 FR 16879, 3 CFR, 1979 Comp., p. 375; E.O.
13124, 64 FR 31103, 3 CFR, 1999 Comp., p. 192; E.O. 13562, 75 FR
82585, 3 CFR, 2010 Comp., p. 291; E.O. 14217, 90 FR 10577; and
Presidential Memorandum of May 11, 2010, 75 FR 27157, 3 CFR, 2010
Comp., p. 327.
Sec. 213.3202 also issued under 5 U.S.C. 3304.
Subpart A--General Provisions
0
2. Amend Sec. 213.102 by revising the section heading and paragraph
(b)(3)(i) to read as follows:
Sec. 213.102 Identification of positions in Schedules A, B, C, D, or
G.
* * * * *
(b) * * *
(3) * * *
(i) Upon determining that any position or group of positions, as
defined in paragraph (c) of this section, should be excepted
indefinitely or temporarily from the competitive service, the Office of
Personnel Management will authorize placement of the position or group
of positions into Schedule A, B, C, D, or G, as applicable. Unless
otherwise specified in a particular appointing authority, an agency may
make Schedule A, B, C, D, or G appointments on either a permanent or
nonpermanent basis, with any appropriate work schedule (i.e., full-
time, part-time, seasonal, on-call, or intermittent).
* * * * *
0
3. Revise Sec. 213.103 to read as follows:
Sec. 213.103 Publication of excepted appointing authorities in
Schedules A, B, C, D, E, Policy/Career, and G.
(a) Schedule A, B, C, D, E, Policy/Career, and G appointing
authorities available for use by all agencies will be published as
regulations in the Federal Register and the Code of Federal
Regulations.
(b) OPM will publish annually, as a notice in the Federal Register,
a consolidated listing of all agency-specific Schedule A, B, C, Policy/
Career, and G authorities current as of June 30 of each year, with
assigned authority numbers or other unique identifiers. The annual
notice will also identify agency-specific authorities established,
modified, or revoked during the preceding reporting period. OPM may
publish additional notices concerning agency-specific authorities when
OPM determines that additional notice would promote sound
administration or public transparency.
0
4. Amend Sec. 213.104 by revising the section heading and paragraphs
(a) introductory text, (a)(1), (a)(2), (b)(1), and (b)(3)(iii) to read
as follows:
Sec. 213.104 Special provisions for temporary, time-limited,
intermittent, or seasonal appointments in Schedule A, B, C, D, or G.
(a) When OPM specifies that appointments under a particular
Schedule A, B, C, D, or G authority must be temporary, intermittent, or
seasonal, or when agencies elect to make temporary, intermittent, or
seasonal appointments in Schedule A, B, C, D, or G, those terms have
the following meaning:
(1) Temporary appointments, unless otherwise specified in a
particular Schedule A, B, C, D, or G exception, are made for a
specified period not to exceed 1 year and are subject to the time
limits in paragraph (b) of this section. Time-limited appointments made
for more than 1 year are not considered to be temporary appointments
and are not subject to these time limits.
(2) Intermittent positions are positions without a regular tour of
duty.
* * * * *
(b) * * *
(1) Service limits. Agencies may make temporary appointments for a
period not to exceed 1 year, unless the applicable Schedule A, B, C, D,
or G authority specifies a shorter period. Except as provided in
paragraph (b)(3) of this section, agencies may extend temporary
appointments for no more than 1 additional year (24 months of total
service). Appointment to a successor position (i.e., a position that
replaces and absorbs the original position) is considered to be an
extension of the original appointment. Appointment to a position
involving the same basic duties, in the same major subdivision of the
agency, and in the same local commuting area is also considered to be
an extension of the original appointment.
* * * * *
(3) * * *
(iii) OPM may approve extension of specific temporary appointments
beyond 2 years (24 months total service) for specific positions,
projects or other unusual circumstances.
Subpart C--Excepted Schedules
Schedule A
0
5. Amend Sec. 213.3102 by revising paragraphs (i)(1) and (u) to read
as follows:
Sec. 213.3102 Entire executive civil service.
* * * * *
(i) * * *
(1) Positions in remote/isolated locations where examination is
impracticable. A remote/isolated location is outside the local
commuting area of a population center from which an employee can
reasonably be expected to travel on short notice under adverse weather
or road conditions that are normal for the area. For this purpose, a
population center is a town with housing, schools, health care, stores
and other businesses in which the government can reasonably expect to
attract applicants. An individual appointed under this authority may
not be employed in the same agency under a combination of this and any
other appointment to positions involving related duties and requiring
the same qualifications for more than 1,040 working hours in a service
year. Temporary appointments under this authority may be extended in 1-
year increments, with no limit on the number of such extensions, as an
exception to the service limits in Sec. 213.104.
* * * * *
(u) Appointment of persons with intellectual disabilities, severe
physical disabilities, or psychiatric disabilities --
(1) Purpose. An agency may appoint, on a permanent, time-limited,
or temporary basis, a person with an intellectual disability, a severe
physical disability, or a psychiatric disability according to the
provisions described below.
(2) Proof of disability.
(i) An agency must require proof of an applicant's intellectual
disability, severe physical disability, or psychiatric disability prior
to making an appointment under this section.
(ii) An agency may accept, as proof of disability, appropriate
documentation (e.g., records, statements, or other appropriate
information) issued by a licensed medical professional (e.g., a
physician or other medical professional duly certified by a State, the
District of Columbia, or a U.S. territory, to practice medicine); a
licensed vocational rehabilitation specialist (State or private); or
any Federal agency, State agency, or an agency of the District of
Columbia or a U.S. territory that issues or provides disability
benefits.
(3) Permanent or time-limited employment options. An agency may
make permanent or time-limited appointments under this paragraph (u)(3)
where an applicant supplies proof of disability as described in
paragraph (u)(2) of this section and the agency determines that the
individual is likely to succeed in performing the duties of the
position for which he or she is applying. In determining whether the
individual is likely to succeed in performing the duties of the
position, the agency may rely upon the
[[Page 59088]]
applicant's employment, educational, or other relevant experience,
including but not limited to service under another type of appointment
in the competitive or excepted services.
(4) Temporary employment options. An agency may make a temporary
appointment when:
(i) The agency determines that it is necessary to observe the
applicant on the job to determine whether the applicant is able or
ready to perform the duties of the position. When an agency uses this
option to determine an individual's job readiness, the hiring agency
may convert the individual to a permanent appointment in the excepted
service whenever the agency determines the individual is able to
perform the duties of the position; or
(ii) The work is of a temporary nature.
(5) Noncompetitive conversion to the competitive service.
(i) An agency may noncompetitively convert to the competitive
service an employee who has completed 2 years of satisfactory service
under this authority in accordance with the provisions of Executive
Order 12125, as amended by Executive Order 13124, and Sec. 315.709 of
this chapter, except as provided in paragraph (u)(5)(ii) of this
section.
(ii) Time spent on a temporary appointment specified in paragraph
(u)(4)(ii) of this section does not count towards the 2-year
requirement.
* * * * *
Sec. 213.3301 [Amended]
0
6. Amend Sec. 213.3301 by removing the phrase ``number from 213.3302
through 213.3399, or other appropriate number,'' in paragraph (a) and
adding in its place the phrase ``unique identifier''.
0
7. Amend Sec. 213.3402 by revising paragraph (b) to read as follows:
Sec. 213.3402 Entire executive civil service; Pathways Programs.
* * * * *
(b) Recent Graduates Program; Positions in the Recent Graduates
Program.
(1) Except as provided in paragraph (b)(2) of this section, initial
appointments of Recent Graduates may be made at any grade level, not to
exceed GS-11 (or equivalent level under another pay and classification
system, including the Federal Wage System (FWS)), depending on the
candidates' qualifications.
(2) Initial appointments may be made to scientific and professional
research positions at the GS-12 level for which the classification and
qualification criteria for research positions apply, if the candidate
possesses a Ph.D. or equivalent degree directly related to the position
the agency is seeking to fill.
(3) Appointments must be made in accordance with the provisions of
subpart C of part 362 of this chapter.
0
8. Add a new undesignated center heading after Sec. 213.3402 to read
as follows:
SCHEDULE E
0
9. Add new Sec. 213.3501 below the undesignated heading SCHEDULE E to
read as follows:
Sec. 213.3501 Positions of administrative law judge appointed under 5
U.S.C. 3105.
(a) An agency may appoint an individual under this section only to
an administrative law judge position appointed under 5 U.S.C. 3105.
Positions filled under this section are excepted from the competitive
service and constitute Schedule E.
(b) A new appointment to an administrative law judge position made
on or after July 10, 2018, must be made under Schedule E. This section
does not alter the status of an incumbent administrative law judge
whose competitive-service status is preserved under Sec. 6.8(d) of
this chapter.
(c) An appointment under this section is not subject to the
appointment procedures of part 302 of this chapter, including
examination and rating procedures. Each agency shall follow the
principle of veterans' preference as far as administratively feasible.
(d) Appointments under this section must comply with Sec. 6.3(b)
of this chapter. At the time of application and any new appointment, an
individual, other than an incumbent administrative law judge, must
possess a professional license to practice law and be authorized to
practice law under the laws of a State, the District of Columbia, the
Commonwealth of Puerto Rico, or a territorial court established under
the Constitution of the United States, subject to the license-status
provisions in Sec. 6.3(b) of this chapter.
(e) Appointments and personnel actions under this section remain
subject to applicable statutory and regulatory requirements governing
administrative law judges, including 5 U.S.C. 3105, 5 U.S.C. 7521, and
subpart B of part 930 of this chapter.
(f) An individual appointed under this section is not subject to a
trial period under part 11 of this chapter.
0
10. Amend Sec. 213.3601 by:
0
a. Revising paragraphs (b) and (c);
0
b. Removing paragraph (d) and redesignating paragraphs (e) and (f) as
paragraphs (d) and (e), respectively; and
0
c. Revising newly redesignated paragraph (e) and adding paragraph (f)
to read as follows:
Sec. 213.3601 Career positions of a confidential, policy-determining,
policy-making, or policy-advocating character.
* * * * *
(b)(1) Except as provided in paragraph (c) of this section,
agencies must make appointments to positions in Schedule Policy/Career
of the excepted service in the same manner as to positions in the
competitive service, to include:
(i) Public notification of job opportunities;
(ii) Applicant evaluation based on valid, job-related assessments;
and
(iii) Selections of highly qualified individuals based on merit.
(2) In making appointments under paragraph (b)(1) of this section,
agencies must follow the principles of veterans' preference as far as
administratively feasible based on the rating, ranking, and selection
processes used for making appointments. Where numerical ratings are
used in the evaluation and referral of candidates, agencies shall
follow the regulations related to veterans' preference in part 302 and
subpart A of part 337 of this chapter, as applicable. When category
rating is used, agencies shall follow the procedures related to
veterans' preference in part 302 and subpart C of part 337 of this
chapter. Where another process is used in accordance with Sec. 302.105
of this chapter, veteran status must be considered a positive factor.
(c) Agencies must make appointments to positions in Schedule
Policy/Career of the excepted service that, but for their placement in
Schedule Policy/Career, would be listed in another excepted service
schedule pursuant to the rules applicable to such positions in the
corresponding schedule, including the application of veterans'
preference as far as administratively feasible.
* * * * *
(e) Individuals appointed to positions in Schedule Policy/Career
are not subject to trial periods under part 11 of this chapter. An
individual appointed under paragraph (b) of this section in the same
manner as an appointment in the competitive service acquires
competitive status after completing 2 years of continuing service in
the same or similar positions. Nothing in this paragraph limits the
retention of competitive status under Sec. 1.3(d) of this chapter or
the acquisition of competitive status under Sec. 3.1(a)(5) or Sec.
6.8(e) of this chapter.
(f) To the extent permitted by the statute governing the position
and any applicable Executive order, a position in a statutory personnel
system outside title 5, United States Code, may be designated as
Schedule Policy/Career if the position is of a confidential, policy-
[[Page 59089]]
determining, policy-making, or policy-advocating character. For a
position described in this paragraph that is otherwise covered by
chapters 23, 43, or 75 of title 5, designation in Schedule Policy/
Career affects coverage under those chapters to the extent provided by
5 U.S.C. 2302(a)(2)(B)(i), 4301(2)(G), 4303(e)(3), and 7511(b)(2), and
applicable implementing regulations. Such designation does not
otherwise alter the governing statutory personnel system unless
expressly provided by statute, Executive order, or regulation.
0
11. Add a new undesignated center heading after Sec. 213.3601 to read
as follows:
SCHEDULE G
0
12. Add new Sec. 213.3701 below the undesignated heading SCHEDULE G to
read as follows:
Sec. 213.3701 Positions of a policy-making or policy-advocating
character normally subject to change as a result of a Presidential
transition.
Upon specific authorization by OPM, agencies may make appointments
under this section to noncareer positions that are of a policy-making
or policy-advocating character and are normally subject to change as a
result of a Presidential transition. Positions filled under this
authority are excepted from the competitive service and constitute
Schedule G. Each position will be assigned a unique identifier to be
used by the agency in recording appointments made under that
authorization.
PART 302--EMPLOYMENT IN THE EXCEPTED SERVICE
0
13. The authority citation for part 302 is revised to read as follows:
Authority: 5 U.S.C. 1103, 1104, 1302, 3301, 3302, 3308, 3309,
3313, 3315, 3317, 3318, 3319, 3320, and 8151; E.O. 10577, 19 FR
7521, 3 CFR, 1954-1958 Comp., p. 218; E.O. 14171, 90 FR 8625.
Sec. 302.105 also issued under 5 U.S.C. 1104 and sec. 3(5), Pub.
L. 95-454, 92 Stat. 1112.
Sec. 302.107 also issued under 5 U.S.C. 9201-9206 and sec.
1122(b)(1), Pub. L. 116-92, 133 Stat. 1605.
Secs. 302.108 and 302.203 also issued under E.O. 13764, 82 FR
8115, 3 CFR, 2017 Comp., p. 243.
Subparts E and F also issued under 5 U.S.C. 3318(c), 3319(c),
and 3320; sec. 2(d), Pub. L. 114-137, 130 Stat. 312 (5 U.S.C. 3318
note).
Sec. 302.701 also issued under 5 U.S.C. chapter 77.
Subpart A--General Provisions
0
14. Revise Sec. 302.101 to read as follows:
Sec. 302.101 Positions covered by regulations.
(a) Positions covered. With respect to the application of veterans'
preference, this part applies to each position in the executive branch
of the Federal Government that is not in the competitive service and
that is subject to title 5, United States Code, or subject to a
statutory requirement to follow the veterans' preference provisions of
title 5. With respect to restoration rights due to compensable injury
and appeals therefrom, this part applies to positions covered by 5
U.S.C. 8101(1) that are not in the competitive service.
(b) Positions not covered. This part does not apply to a position
or appointment that is required by the Congress to be confirmed by, or
made with the advice and consent of, the Senate.
(c) Positions exempt from appointment procedures. An agency is not
required to apply the examination, rating, ranking, referral, and
selection procedures of this part to the following positions or
appointments. Each agency shall, however, follow the principle of
veterans' preference as far as administratively feasible and, upon
request of a qualified and available preference eligible, shall provide
the reasons for the individual's nonselection. Nothing in this
paragraph relieves an agency of any restoration, reemployment, or
priority consideration obligation required by 5 U.S.C. 8151, part 353
of this chapter, this part, a final order, or other applicable law.
(1) Positions filled by persons appointed without pay or at pay of
$1 a year.
(2) Positions outside the continental United States and outside the
State of Hawaii and the Commonwealth of Puerto Rico when filled by
persons resident in the locality, and positions in the State of Hawaii
and the Commonwealth of Puerto Rico when paid in accordance with
prevailing wage rates.
(3) Positions that the exigencies of the national defense program
require to be filled immediately before qualified applicants can be
identified or considered, provided that appointments under this
paragraph are temporary and may not exceed 1 year, with not more than 1
additional year of extension.
(4) Positions filled by appointees serving on an irregular or
occasional basis whose hours or days of work are not based on a
prearranged schedule and who are paid only for the time actually
employed or for services actually performed.
(5) Positions paid on a fee basis.
(6) Attorney positions.
(7) Law clerk trainee positions filled under Sec. 213.3102(e) of
this chapter.
(8) Positions OPM excepts from the competitive service under Sec.
6.1 of this chapter when OPM agrees with the agency that the positions
should be included hereunder and provides in writing that an agency is
not required to fill positions according to the procedures in this
part.
(9) Positions included in Schedule C and Schedule G.
(10) Administrative law judge positions in Schedule E.
(11) Confidential, policy-determining, policy-making, or policy-
advocating positions filled under Schedule Policy/Career. Appointments
under this authority must be made in accordance with the provisions of
Sec. 213.3601 of this chapter.
(12) Positions filled by reemployment of an individual in the same
agency, at the same or lower grade or pay level, and under the same
appointing authority as the position last held.
(13) Positions in remote or isolated locations when filled under
Sec. 213.3102(i)(1) of this chapter.
(14) Positions for which a critical hiring need exists when filled
under Sec. 213.3102(i)(2) of this chapter.
(15) Positions filled under Sec. 213.3102(u) of this chapter by
persons with intellectual disabilities, severe physical disabilities,
or psychiatric disabilities.
0
15. Revise Sec. 302.103 to read as follows:
Sec. 302.103 Definitions.
For purposes of this part:
Person entitled to priority consideration means an individual who
is entitled to priority consideration for appointment under 5 U.S.C.
8151, part 353 of this chapter, Sec. Sec. 302.303 and 302.304, a final
order, or other applicable statute, regulation, or binding legal
authority.
0
16. Revise Sec. 302.104 to read as follows:
Sec. 302.104 Applicability of regulations to applicants and
employees.
Except as otherwise authorized in this chapter, an agency must
apply the provisions of this part necessary to accord veterans'
preference and priority consideration whenever a qualified preference
eligible or a person entitled to priority consideration applies for
appointment to a position covered by this part. When no qualified
preference eligible or person entitled to priority consideration
applies, the agency may use any lawful appointing procedure consistent
with the applicable excepted service authority.
[[Page 59090]]
0
17. Revise Sec. 302.105 to read as follows:
Sec. 302.105 Alternative procedures.
(a) General. An agency may use an alternative procedure for
accepting, evaluating, referring, or selecting applicants for positions
subject to this part if the procedure is in writing, is applied
uniformly, is consistent with merit system principles, and provides
preference eligibles and persons entitled to priority consideration at
least as much advantage in consideration, referral, and selection as
they would receive under the procedures otherwise set forth in this
part.
(b) Contents. An alternative procedure must describe--
(1) The positions or appointing authorities covered;
(2) The method for accepting applications or expressions of
interest;
(3) The method for determining qualifications and evaluating
applicants;
(4) The method for applying veterans' preference;
(5) The method for identifying and considering persons entitled to
priority consideration;
(6) The documentation the agency will maintain; and
(7) The circumstances under which the agency may use an exception
to selection of a person entitled to priority consideration or pass
over a preference eligible.
(c) OPM review. OPM may require an agency to submit an alternative
procedure for review and may require the agency to modify or
discontinue any procedure that does not satisfy this section.
(d) No waiver of law. An alternative procedure may not waive any
statutory requirement, including any requirement concerning veterans'
preference, pass-over of preference eligibles, restoration rights,
priority consideration, suitability, fitness, or prohibited personnel
practices.
(e) OPM-led pooled hiring actions. When OPM administers an OPM-led
pooled hiring action under subpart F of this part, OPM may establish
procedures, consistent with 5 U.S.C. 3317(b), 5 U.S.C. 3318, 5 U.S.C.
3319, 5 U.S.C. 3320, and this part, for the rating, ranking, and
selection of eligible candidates by participating agencies.
0
18. Revise Sec. 302.106 to read as follows:
Sec. 302.106 Vacancy announcements.
(a) This section does not require an agency to issue a public
vacancy announcement unless public notice is required by statute,
regulation, the applicable appointing authority, or agency policy.
(b) When an agency announces a vacancy for a position covered by
this part, the announcement must also provide, as applicable,
instructions for claiming veterans' preference and priority
consideration.
(c) When an agency announces a vacancy in the excepted service, the
announcement must include a reasonable accommodation statement that
complies with part 330, subpart A of this chapter.
Subpart B--Eligibility Standards
0
19. Revise Sec. 302.201 to read as follows:
Sec. 302.201 Persons entitled to veterans' preference.
In actions subject to this part, each agency shall grant veterans'
preference as follows:
(a) Numerical rating. When numerical scores are used in evaluation
and referral, the agency shall grant 5 additional points to preference
eligibles under 5 U.S.C. 2108(3)(A) and (B), and 10 additional points
to preference eligibles under 5 U.S.C. 2108(3)(C) through (G),
consistent with 5 U.S.C. 3309.
(b) Category rating. When quality categories are used in evaluation
and referral, preference eligibles do not receive additional points.
The agency must apply veterans' preference consistent with 5 U.S.C.
3319(b) and (c)(6). Within each quality category, preference eligibles
must be listed ahead of individuals who are not preference eligibles.
For positions other than scientific and professional positions at the
GS-9 level or equivalent or higher, qualified preference eligibles with
a compensable service-connected disability of 10 percent or more must
be listed in the highest quality category.
(c) Alternative procedures. When an agency uses an alternative
procedure under Sec. 302.105, the agency must provide preference
eligibles at least as much advantage in evaluation, referral, and
selection as they would receive under the procedures otherwise set
forth in this part.
0
20. Revise Sec. 302.202 to read as follows:
Sec. 302.202 Qualification requirements.
(a) General. Before making an appointment to a position covered by
this part, each agency must establish qualification requirements that
are job-related and consistent with the duties to be performed.
Qualification requirements may include requirements relating to
experience, training, competencies, knowledge, skills, abilities,
citizenship, minimum age, physical condition, or other lawful job-
related factors.
(b) Documentation and uniform application. Each agency must make
its qualification requirements a matter of record, include the
requirements in any vacancy announcement for the position, apply the
requirements uniformly to all applicants, and furnish information
concerning the requirements to an applicant upon request.
(c) Minimum education. An agency may not include a minimum
educational requirement in qualification requirements unless the
position is scientific, technical, or professional and the agency
determines that the duties of the position cannot be performed by a
person who does not have the prescribed minimum education.
(d) Maximum age. An agency may not establish a maximum age
requirement for a position unless the requirement is authorized by
statute or OPM regulation.
(e) Waiver for preference eligibles. Qualification requirements
must include--
(1) A provision for waiver by the agency of requirements as to age,
height, and weight for each preference eligible when the requirements
are not essential to performance of the duties of the position; and
(2) A provision for waiver by the agency of physical requirements
for each preference eligible when the agency, after giving due
consideration to the recommendation of an accredited physician, finds
that the applicant is physically able to discharge the duties of the
position.
Subpart C--Accepting, Rating, and Arranging Applications
0
21. Revise Sec. 302.301 to read as follows:
Sec. 302.301 Receipt of applications.
(a) Each agency shall determine the methods it will use to provide
information concerning opportunities to apply for positions covered by
this part. The agency shall provide applicants with information on how
to apply, a description of the duties of the position, the applicable
qualification requirements, and any other job-related information the
agency determines is necessary.
(b) Each agency shall establish definite policies and procedures
regarding the acceptance of applications for positions covered by this
part and shall make those policies and procedures a matter of record.
(c) Each agency shall apply its application policies and procedures
[[Page 59091]]
uniformly to all applicants being considered for employment and shall
furnish information concerning those policies and procedures to an
applicant upon request.
(d) When an agency fills a position covered by this part and
priority consideration under Sec. 302.303 may apply, the agency shall
provide a means for individuals claiming priority consideration to
identify their eligibility and submit the information necessary for the
agency to determine whether they are priority candidates for the
vacancy.
0
22. Revise Sec. 302.302 to read as follows:
Sec. 302.302 Examination and evaluation of applicants.
(a) General. An agency may evaluate the qualifications of
applicants for positions covered by this part at any time before an
appointment is made. The evaluation must be job-related and may be
conducted using numerical rating, category rating, or an alternative
evaluation method authorized under Sec. 302.105, unless otherwise
exempt from the procedures of this part under Sec. 302.101.
(b) Record of evaluation method. The agency shall make the
evaluation method used to rate and rank applicants a matter of record
and shall make information concerning that method available to an
applicant upon request.
(c) Numerical rating. When an agency uses numerical rating, scores
must be assigned on a scale of 100. An applicant must meet the
qualification requirements established under Sec. 302.202 and receive
an eligible rating of 70 or more to be eligible for appointment.
Candidates with eligible ratings must receive additional points for
veterans' preference as provided in Sec. 302.201.
(d) Category rating. When an agency uses category rating, the
agency must establish and define at least two quality categories before
accepting applications. The quality categories must reflect the
requirements to perform the job successfully and must distinguish
differences in the quality of candidates' job-related competencies,
knowledge, skills, and abilities. An agency may not establish a ``not
qualified'' category. Only qualified applicants may be placed in a
quality category. Veterans' preference must be applied as provided in
Sec. 302.201 and 5 U.S.C. 3319.
(e) Alternative evaluation methods. When an agency uses an
alternative evaluation method authorized under Sec. 302.105, the
agency must apply the method in accordance with its written alternative
procedure and must ensure that preference eligibles and persons
entitled to priority consideration receive at least as much advantage
in referral or selection as they would receive under the procedures
otherwise set forth in this part.
(f) Nonpreference applicants for certain positions. An agency may
not consider or rate an application for the position of elevator
operator, messenger, guard, or custodian submitted by a nonpreference
eligible as long as at least three qualified preference eligibles are
available for the position.
(g) Evaluating experience. When experience is a factor in
determining eligibility, an agency shall credit a preference eligible
--
(1) With time spent in the military service of the United States if
the position for which the preference eligible is applying is similar
to the position the preference eligible held immediately before
entering military service; and
(2) With all valuable experience, including experience gained in
religious, civic, welfare, service, and organizational activities,
regardless of whether pay was received therefor.
0
23. Revise Sec. 302.303 to read as follows:
Sec. 302.303 Priority consideration.
(a) General. An agency shall maintain documented procedures
sufficient to identify, notify, evaluate, and consider priority
candidates for positions covered by this part. In addition, an agency
shall maintain sufficient records to document compliance with this
section and Sec. 302.304. An agency is not required to maintain
separate records designated as a priority reemployment list,
reemployment list, or regular employment list.
(b) Priority candidate. For purposes of this subpart, a priority
candidate is an individual described in paragraph (c) of this section
who has applied for priority consideration under the agency's
procedures, is within the scope of priority consideration established
under this section, is qualified for the vacancy under Sec. 302.202,
and is available for appointment.
(c) Mandatory priority consideration. Subject to any available and
lawful exception, an agency shall provide priority consideration to the
following individuals before appointing any other candidate to a
position covered by this part:
(1) A current or former employee of the agency who is a preference
eligible, who is serving or served under a continuing excepted service
appointment, who has been or will be furloughed or separated by
reduction in force or other workforce reduction action not based on
delinquency or misconduct, and who applies or registers for
reemployment under the agency's procedures;
(2) A current or former employee who is entitled to restoration or
priority consideration because of recovery from compensable injury
under 5 U.S.C. 8151, part 353 of this chapter, or other applicable law;
and
(3) Any other individual to whom the agency is required to provide
reemployment priority under statute, regulation, final order, or other
binding legal authority.
(d) Scope of priority consideration.
(1) Except as otherwise required by statute, regulation, final
order, or other binding legal authority, priority consideration under
paragraph (c)(1) of this section applies to positions in the agency in
the local commuting area from which the individual was or will be
furloughed or separated, at the same or lower grade or pay level, with
no greater promotion potential, and with a work schedule no broader
than the work schedule of the position from which the individual was or
will be furloughed or separated.
(2) Priority consideration under paragraph (c)(2) of this section
applies in accordance with 5 U.S.C. 8151, part 353 of this chapter, and
other applicable law. Nothing in this section limits an employee's
right to immediate and unconditional restoration where such restoration
is required by law or regulation.
(3) An agency may provide broader priority consideration than the
minimum required by this section, including broader geographic
consideration, additional grades or pay levels, different work
schedules, or longer eligibility periods, if the agency establishes the
broader consideration in written policy and applies it uniformly to
similarly situated individuals.
(e) Duration of priority consideration.
(1) Priority consideration under paragraph (c)(1) of this section
expires 2 years after the effective date of the furlough or separation,
unless a longer period is required by statute, regulation, final order,
or other binding legal authority, or the agency establishes a longer
period in written policy.
(2) Priority consideration and restoration rights under paragraph
(c)(2) of this section are governed exclusively by 5 U.S.C. 8151, part
353 of this chapter, and other applicable law, and continue for the
period, and on the terms, established by that statute and those
regulations. Nothing in this section imposes a 2-year or other
durational limit on an entitlement
[[Page 59092]]
arising under 5 U.S.C. 8151 or part 353 of this chapter, and nothing in
this section shall be construed to shorten, condition, or otherwise
diminish the restoration or priority-consideration rights provided by
that statute and those regulations.
(3) Priority consideration under paragraph (c)(3) of this section
continues for the period required by the applicable statute,
regulation, final order, or other binding legal authority.
(f) Agency procedures. Each agency shall establish written
procedures for administering priority consideration under this section.
The procedures must address, at a minimum--
(1) How individuals may apply for priority consideration for
specific vacancies;
(2) How the agency will determine the qualifications of individuals
who may be eligible for priority consideration;
(3) How individuals may update availability, location,
qualification, grade, pay level, work schedule, and other placement
information;
(4) How the agency will determine whether an individual is a
priority candidate for a specific vacancy;
(5) How the agency will evaluate and rank priority candidates, if
more than one priority candidate is available for the same vacancy;
(6) How the agency will apply veterans' preference among priority
candidates; and
(7) How the agency will notify priority candidates of the outcome
of consideration.
0
24. Revise Sec. 302.304 to read as follows:
Sec. 302.304 Applying priority consideration and considering other
candidates.
(a) Priority consideration before other candidates. Before
appointing any individual to a position covered by this part, an agency
must determine whether there is a priority candidate under Sec.
302.303 for the vacancy. Except as provided in paragraph (d) of this
section, an agency may not appoint a non-priority candidate if a
priority candidate is qualified, available, within the scope of
priority consideration, and eligible for selection for the vacancy.
(b) Selection among priority candidates.
(1) If there is one priority candidate for a vacancy, the agency
must select that candidate before selecting any other candidate, unless
an exception under paragraph (d) of this section applies.
(2) If there is more than one priority candidate for a vacancy, the
agency shall evaluate the priority candidates using the method
established for the vacancy under Sec. 302.302 or Sec. 302.105 and
shall apply veterans' preference under Sec. 302.201. The agency shall
select from among the priority candidates before selecting any non-
priority candidate, unless an exception under paragraph (d) of this
section applies.
(3) An agency may not pass over a preference eligible to select a
nonpreference eligible from the same group of priority candidates
unless the applicable pass-over requirements of this part, 5 U.S.C.
3318, 5 U.S.C. 3319, or other applicable authority are satisfied.
(c) Consideration of non-priority candidates. After an agency has
satisfied the priority consideration requirements of this section or
has documented that no priority candidate is available and qualified
for the vacancy, the agency may consider other qualified applicants
using the evaluation method established for the vacancy under Sec.
302.302 or Sec. 302.105. The agency must apply veterans' preference
under Sec. 302.201.
(d) Exceptions. An agency may appoint an individual other than a
priority candidate only when an available and lawful exception applies.
Such exceptions include--
(1) A position or appointment exempt from the appointment
procedures of this part under Sec. 302.101(c), provided that the
exemption does not relieve the agency of any restoration or priority-
placement obligation required by 5 U.S.C. 8151, part 353 of this
chapter, this part, or other applicable law;
(2) An action required to satisfy an individual's superior
statutory or regulatory restoration, reemployment, or placement right,
including immediate restoration under part 353 of this chapter,
restoration following military service, or compliance with a final
order of the Merit Systems Protection Board, a court, or other
competent authority;
(3) A determination, documented by the agency, that no priority
candidate is qualified, available, or within the scope of priority
consideration for the vacancy;
(4) A determination, documented by the agency, that the duties of
the position cannot be taken over without undue interruption by any
available priority candidate;
(5) A priority candidate's declination of an offer, failure to
respond to a written inquiry regarding availability, or failure to
appear for a scheduled interview, when the agency's written inquiry or
notice advised the candidate of the consequence of nonresponse or
nonappearance;
(6) A conversion, extension, reappointment, or other personnel
action that is expressly excepted from priority consideration by
statute, regulation, this chapter, OPM-approved plan, or the terms of
the applicable appointing authority; or
(7) Any other exception authorized in writing by OPM or otherwise
required by law.
(e) Notice to affected priority candidates. When an agency uses an
exception under paragraph (d) of this section to appoint an individual
other than a priority candidate, the agency shall notify each adversely
affected priority candidate of the reason for the exception. The agency
shall notify the individual of any appeal rights provided by subpart G
of this part, part 1201 of this title, part 353 of this chapter, or
other applicable law.
(f) Documentation. An agency shall maintain documentation showing--
(1) The vacancy or personnel action filled;
(2) Whether priority consideration applied;
(3) The identity of each priority candidate considered;
(4) The agency's qualification and availability determination for
each priority candidate;
(5) The evaluation method used;
(6) The application of veterans' preference, if applicable;
(7) The selection or nonselection decision; and
(8) The basis for any exception used under paragraph (d) of this
section.
Subpart D--Selection and Appointment; Reappointment; and
Qualifications for Promotion
0
25. Revise Sec. 302.401 to read as follows:
Sec. 302.401 Selection and appointment.
(a) Priority consideration first. Before making an appointment to a
position covered by this part, an agency must satisfy the priority
consideration requirements in Sec. Sec. 302.303 and 302.304.
(b) Numerical rating. When an agency uses numerical rating, the
agency may refer candidates for selection using a method established
before applications are solicited and documented in the recruitment
file. The method may include a cut-off score, a set number of the
highest-ranked eligible candidates, a set percentage of the highest-
ranked eligible candidates, or another job-related method consistent
with Sec. 302.105. A selecting official may select any referred
eligible candidate, except that the selecting official may not pass
over a higher-standing preference eligible to select a lower-standing
nonpreference eligible unless the agency satisfies paragraph (e) of
this section.
[[Page 59093]]
(c) Category rating. When an agency uses category rating, the
agency may select any eligible candidate in the highest quality
category. If fewer than three candidates are in the highest quality
category, the agency may merge the highest and second-highest quality
categories and make selections from the merged category. Preference
eligibles must be listed ahead of nonpreference eligibles within each
category or merged category. A selecting official may not select a
nonpreference eligible over a preference eligible in the same category
unless the agency satisfies paragraph (e) of this section.
(d) Alternative procedures. When an agency uses an alternative
procedure under Sec. 302.105, selection must be made in accordance
with that procedure. The procedure must provide preference eligibles
and persons entitled to priority consideration at least as much
advantage in consideration, referral, and selection as they would
receive under the procedures otherwise set forth in this part.
(e) Passing over a preference eligible. When an agency proposes to
pass over a preference eligible to select a nonpreference eligible, the
agency must comply with the applicable requirements of 5 U.S.C.
3318(c), 5 U.S.C. 3319(c)(6), and OPM instructions.
(f) Discontinuing consideration. An agency may discontinue
consideration of an eligible candidate only as authorized by 5 U.S.C.
3318(e), Sec. 302.105(e), or other applicable law, consistent with the
requirements in Sec. 332.405 of this chapter. Nothing in this
paragraph authorizes passing over a preference eligible except as
permitted by paragraph (e) of this section and applicable law.
(g) Documentation. The agency must document the selection method
used, the application of veterans' preference, the application of
priority consideration, any pass-over decision, and the basis for the
selection. The documentation must be sufficient to permit
reconstruction or third-party review.
(h) Special conditions for OPM-led pooled hiring actions.
(1) When OPM administers an OPM-led pooled hiring action under
subpart F of this part, and determines, based on written documentation,
that an eligible candidate has received bona fide consideration for
three separate appointments from the same shared certificate for the
same position, OPM may discontinue further referral of that candidate
from that certificate for that position. For purposes of this
paragraph, ``the same position'' means a position in the same
occupational series, at the same grade or equivalent pay level, and
involving substantially equivalent duties, qualification requirements,
competencies, and, as applicable, duty location or other lawful
position requirements. OPM's authority under this paragraph
supplements, and does not limit, agency authority under Sec. Sec.
302.502(b), 302.603(d), and 302.604(e).
(2) Before discontinuing referral under this paragraph, OPM must
document the basis for the determination. The documentation must show
that the candidate's application material was reviewed and considered,
that the candidate received bona fide consideration for three separate
appointments, and that discontinuing further referral is supported by a
job-related skill, competency, location, availability, or other lawful
requirement relevant to the position being filled. OPM must maintain
documentation sufficient to reconstruct the action and must provide
written notification to a candidate whose referral is discontinued
under this paragraph upon request by the candidate.
(3) Nothing in this paragraph authorizes passing over a preference
eligible except as permitted by Sec. 302.401(e) and applicable law.
0
26. Revise Sec. 302.402 to read as follows:
Sec. 302.402 Reappointment.
(a) Subject to Sec. Sec. 302.303 and 302.304, an agency may
reappoint a current or former nontemporary employee of the executive
branch of the Federal Government who is a preference eligible to a
position covered by this part without applying the examination, rating,
ranking, and referral procedures of this part.
(b) This section does not authorize an agency to bypass a qualified
and available person entitled to priority consideration unless a lawful
exception under Sec. 302.304 applies.
(c) A reappointment under this section must be otherwise consistent
with statute, regulation, the applicable appointing authority, and any
agency policy governing reemployment.
Subpart E--Shared Use of Excepted Service Certificates
Sec. 302.502 [Amended]
0
27. Amend Sec. 302.502 in paragraph (b) by:
0
a. Removing the phrase ``Sec. 302.302(b)(1)'' and adding in its place
the phrase ``Sec. 302.302(c)''; and
0
b. Removing the phrase ``Sec. 302.302(b)(2)'' and adding in its place
the phrase ``Sec. 302.302(d)''.
Subpart F--OPM-Led Pooled Hiring Actions
Sec. 302.603 [Amended]
0
28. Amend Sec. 302.603 by:
0
a. In paragraph (d), removing the phrase ``Sec. 302.302(b)(1)'' and
adding in its place the phrase ``Sec. 302.302(c)'', and removing the
phrase ``Sec. 302.302(b)(2)'' and adding in its place the phrase
``Sec. 302.302(d)''; and
0
b. In paragraph (e), removing the phrase ``Sec. 302.401(b)'' and
adding in its place the phrase ``Sec. 302.401(e)''.
Sec. 302.604 [Amended]
0
29. Amend Sec. 302.604 by:
0
a. In paragraph (e), removing the phrase ``Sec. 302.302(b)(1)'' and
adding in its place the phrase ``Sec. 302.302(c)'', and removing the
phrase ``Sec. 302.302(b)(2)'' and adding in its place the phrase
``Sec. 302.302(d)''; and
0
b. In paragraph (f), removing the phrase ``Sec. 302.401(b)'' and
adding in its place the phrase ``Sec. 302.401(e)''.
Subpart G--Appeals
0
30. Revise Sec. 302.701 to read as follows:
Sec. 302.701 Entitlement.
(a) Restoration-rights appeals. An individual who is covered by 5
U.S.C. 8101(1) and who is entitled to restoration or priority
consideration under 5 U.S.C. 8151, part 353 of this chapter, or this
part may appeal an alleged violation of restoration rights to the Merit
Systems Protection Board under the Board's regulations by presenting
factual information that the individual was denied restoration or
priority consideration because of the employment of another person.
(b) Other appeals. A preference eligible or person entitled to
priority consideration may appeal an action taken under this part only
to the extent an appeal right is provided by statute, MSPB regulation,
or other applicable law. Nothing in this part creates an appeal right
not otherwise provided by statute, regulation, or other applicable law.
PART 317--EMPLOYMENT IN THE SENIOR EXECUTIVE SERVICE
0
31. The authority citation for part 317 is revised to read as follows:
Authority: 5 U.S.C. 3392, 3393, 3395, 3397, 3592, 3593, 3595,
3596, 8414, and 8421; E.O. 14317, 90 FR 34753. Section 317.202 also
issued under 5 U.S.C. 9201-9206 and Pub. L. 116-92, sec. 1122(b)(1).
0
32. Amend Sec. 317.304 by revising paragraphs (a)(2)(i) and (iii) to
read as follows:
[[Page 59094]]
Sec. 317.304 Conversion of career and career-type appointees.
(a) * * *
(2) * * *
(i) To a Schedule C or Schedule G position established under part
213 of this chapter;
* * * * *
(iii) To a position which meets the same criteria as a Schedule C
or Schedule G position or a position authorized to be filled by non-
career executive assignment; or
* * * * *
0
33. Amend Sec. 317.305 by revising paragraph (a)(1) to read as
follows:
Sec. 317.305 Conversion of excepted appointees.
(a) * * *
(1) In Schedule C or Schedule G of subpart C of part 213 of this
chapter;
* * * * *
0
34. Amend Sec. 317.502 by revising paragraph (e) to read as follows:
Sec. 317.502 Qualifications Review Board certification.
* * * * *
(e) An action to convert a ``noncareer-type'' employee to a career
SES appointment in the employee's current position or a successor to
that position will not be forwarded to a QRB. A ``noncareer-type''
employee includes a noncareer SES appointee, a Schedule C appointee, a
Schedule G appointee, or equivalent.
* * * * *
0
35. Amend Sec. 317.901 by revising paragraph (c)(1)(ii) to read as
follows:
Sec. 317.901 Reassignments.
* * * * *
(c) * * *
(1) * * *
(ii) Noncareer appointee includes an SES noncareer or limited
appointee, an appointee in a position filled under Schedule C or
Schedule G, or an appointee in an Executive Schedule or equivalent
position that is not required to be filled competitively.
* * * * *
PART 359--REMOVAL FROM THE SENIOR EXECUTIVE SERVICE; GUARANTEED
PLACEMENT IN OTHER PERSONNEL SYSTEMS
0
36. The authority citation for part 359 is revised to read as follows:
Authority: 5 U.S.C. 1302, 3302, and 3596, unless otherwise
noted; E.O. 14317, 90 FR 34753.
0
37. Amend Sec. 359.406 by revising paragraph (b) to read as follows:
Sec. 359.406 Restrictions.
* * * * *
(b) For purposes of this section, a noncareer appointee includes an
SES noncareer or limited appointee, an appointee in a position filled
under Schedule C or Schedule G, or an appointee in an Executive
Schedule or equivalent position other than a career Executive Schedule
or equivalent position.
* * * * *
0
38. Amend Sec. 359.503 by revising paragraph (b) to read as follows:
Sec. 359.503 Restrictions.
* * * * *
(b) For purposes of this section, a noncareer appointee includes an
SES noncareer or limited appointee, an appointee in a position filled
under Schedule C or Schedule G, or an appointee in an Executive
Schedule or equivalent position other than a career Executive Schedule
or equivalent position.
* * * * *
0
39. Amend Sec. 359.701 by revising paragraphs (a)(1) and (2) to read
as follows:
Sec. 359.701 Coverage.
* * * * *
(a) * * *
(1) To a Schedule C or Schedule G position established under part
213 of this chapter;
(2) To a position that meets the same criteria as a Schedule C or
Schedule G position; or
* * * * *
PART 362--PATHWAYS PROGRAMS
0
40. The authority citation for part 362 is revised to read as follows:
Authority: E.O. 13562, 75 FR 82585, 3 CFR, 2010 Comp., p. 291,
as amended by E.O. 14217, 90 FR 10577; and E.O. 14410, 91 FR 34893.
Subpart A--General Provisions
Sec. 362.102 [Amended]
0
41. Amend Sec. 362.102 by removing the definition of ``Advanced
degree.''
0
42. Amend Sec. 362.104 by revising paragraph (a)(8) to read as
follows:
Sec. 362.104 Agency requirements.
(a) * * *
(8) Prescribe criteria and procedures on how the agency will
determine whether it has the resources available to convert a Pathways
Participant to a term or permanent position in the competitive service
or, when authorized under Sec. 362.107, to a permanent Schedule
Policy/Career position. These procedures must specify the timeline for
making the determination, which must include informing the Pathways
Participant no later than 60 calendar days prior to the end of the
appointment about whether the agency is able to convert them. If an
agency is unable to convert a Pathways Participant, its procedures may
include the actions it will take to assist a Participant in pursuing
conversion at another agency, when appropriate.
* * * * *
0
43. Amend Sec. 362.105 by revising paragraph (e)(2) to read as
follows:
Sec. 362.105 Filling positions.
* * * * *
(e) * * *
(2) A Pathways Participant must be a United States citizen to be
eligible for noncompetitive conversion to term or permanent employment
in the competitive service or to permanent employment in Schedule
Policy/Career.
* * * * *
0
44. Amend Sec. 362.106 by revising paragraph (h) to read as follows:
Sec. 362.106 Participant Agreement.
* * * * *
(h) Minimum eligibility requirements for noncompetitive conversion
to term or permanent competitive service employment, or to permanent
Schedule Policy/Career employment when authorized under Sec. 362.107,
according to the requirements of the applicable Pathways Program.
0
45. Revise Sec. 362.107 to read as follows:
Sec. 362.107 Conversion to the competitive service or Schedule
Policy/Career.
(a) General conversion authority. Subject to any limits on
conversion imposed by the Director, and in accordance with the
provisions of each Pathways Program, an agency may noncompetitively
convert an eligible Pathways Participant to:
(1) A term or permanent position in the competitive service; or
(2) A permanent position in Schedule Policy/Career, if the position
is a career position described in Sec. 213.3601(a) of this chapter and
the conversion is authorized under this part and any applicable OPM
policy or guidance. A noncompetitive conversion to a permanent position
is subject to review by OPM.
(b) Competitive service term appointment. A Pathways Participant
who is noncompetitively converted to a competitive service term
appointment may be subsequently converted noncompetitively to a
permanent competitive service position.
(c) Noncompetitive conversion.
(1) An Intern may be converted to a position within the employing
agency or
[[Page 59095]]
any other agency within the Federal Government.
(2) A Recent Graduate may be converted to a position within the
employing agency or any other agency within the Federal Government.
Conversion to a position at a different agency is subject to Sec.
362.305(c).
(d) Reemployment-priority and career-transition programs. The
provisions of subparts B, F, and G of part 330 of this chapter do not
apply to conversions made under this part.
(e) Career tenure. Time spent serving as a Pathways Participant
counts toward career tenure when the individual is noncompetitively
converted to a permanent position in the competitive service upon
completion of the Pathways Program, with or without an intervening term
appointment, and without a break in service of 1 day, as provided in
Sec. 315.201 of this chapter.
(f) Competitive status, probationary periods, and trial periods.
(1) A Pathways Participant converted to a career or career-
conditional appointment in the competitive service under Sec. 315.713
of this chapter acquires competitive status upon completion of the
probationary period requirements in part 11 of this chapter.
(2) A Pathways Participant converted to a Schedule Policy/Career
position under paragraph (a)(2) of this section is not required to
serve a trial period under part 11 of this chapter and obtains
competitive status after 2 years of continuing service in the Schedule
Policy/Career position.
(g) No entitlement. Service in a Pathways Program confers no right
to further employment in either the competitive or excepted service. An
agency wishing to convert a Pathways Participant must execute the
required actions to do so. Nothing in this section confers a right to
conversion to Schedule Policy/Career, conversion to the competitive
service, competitive status, career tenure, a career or career-
conditional appointment, or future appointment to the competitive
service.
0
46. Amend Sec. 362.109 by revising paragraph (c)(4) and adding
paragraph (c)(5) to read as follows:
Sec. 362.109 Reporting requirements.
* * * * *
(c) * * *
(4) The number of Pathways Participants, per Program, converted to
Schedule Policy/Career in the excepted service; and
(5) The number of Pathways Participants, per Program, who were
separated.
0
47. Add Sec. 362.110 to read as follows:
Sec. 362.110 Governmentwide Pathways Leadership Development Program.
OPM may develop and administer a governmentwide Pathways Leadership
Development Program under the Recent Graduates Program authority. The
program may include formal training, career development, and rotational
assignments across participating agencies. The program must be
administered consistent with this part, including the eligibility,
appointment, participant agreement, performance, completion, and
conversion requirements applicable to Recent Graduates.
Responsibilities assigned to participants shall be consistent with the
participant's qualifications, skills, competencies, career interests,
agency needs, and the broader leadership development purpose of the
program. OPM may issue implementing instructions governing the number
of participants, participant selection, agency participation, training,
rotations, certification of completion, and conversion review. Program
Participants may be hired by agencies using the excepted service
appointing authority provided by Sec. 213.3402(b) of this chapter.
Subpart B--Internship Program
0
48. Amend Sec. 362.203 by revising paragraph (g)(4) to read as
follows:
Sec. 362.203 Filling positions.
* * * * *
(g) * * *
(4) Requirements for noncompetitive conversion to a term or
permanent position in the competitive service, or to a permanent
Schedule Policy/Career position when authorized under Sec. 362.107,
are understood by all parties.
* * * * *
0
49. Amend Sec. 362.204 by revising the section heading and paragraphs
(a), (b)(4), and (b)(5) to read as follows:
Sec. 362.204 Conversion to the competitive service or Schedule
Policy/Career.
(a) An agency may noncompetitively convert an Intern who is a U.S.
citizen to a term or permanent appointment in the competitive service
or to a permanent appointment in Schedule Policy/Career under Sec.
362.107.
(b) * * *
(4) Met the qualification standards for the position to which the
Intern will be converted; and
(5) Met agency-specific requirements as specified in the agency's
Participant Agreement with the Intern.
* * * * *
Subpart C--Recent Graduates Program
0
50. Amend Sec. 362.303 by revising paragraphs (b)(3)(i) through (iii)
to read as follows:
Sec. 362.303 Filling positions.
* * * * *
(b) * * *
(3) * * *
(i) An agency may make an initial appointment of a Recent Graduate
to any position filled under the authority in this section for which
the Recent Graduate qualifies, up to the GS-11 level (or equivalent
under another pay and classification system, such as the Federal Wage
System), except as provided in paragraph (b)(3)(ii) of this section.
(ii) Initial appointments may be made to scientific and
professional research positions at the GS-12 level for which the
classification and qualification criteria for research positions apply,
if the candidate possesses a Ph.D. or equivalent degree directly
related to the position the agency is seeking to fill.
(iii) Positions must have progressively more responsible duties
that provide career advancement opportunities (i.e., positions must
provide for career ladder advancement).
* * * * *
0
51. Amend Sec. 362.304 by revising paragraphs (d) and (e) to read as
follows:
Sec. 362.304 Movement between agencies.
* * * * *
(d) Time served under the previous agency's Recent Graduates
Program is credited toward the Program requirements for noncompetitive
conversion eligibility to the competitive service or, when authorized
under Sec. 362.107, to Schedule Policy/Career. Because there is no
break in service, the Recent Graduate does not begin a new period in
the Program upon moving to the new agency.
(e) The new employing agency's plan must identify requirements for
Program completion and eligibility for noncompetitive conversion to the
competitive service or, when authorized under Sec. 362.107, to
Schedule Policy/Career.
0
52. Revise Sec. 362.305 to read as follows:
Sec. 362.305 Conversion to the competitive service or Schedule
Policy/Career.
(a) An agency may noncompetitively convert a Recent Graduate who is
a U.S. citizen to a competitive service term or permanent position or
to a permanent Schedule Policy/Career position under Sec. 362.107 when
the Recent Graduate has:
[[Page 59096]]
(1) Successfully completed at least 1 year of continuous service in
addition to all the requirements of the Recent Graduates Program;
(2) Demonstrated successful job performance consistent with the
applicable performance appraisal program established under the agency's
approved performance appraisal system that results in a rating of
record (or summary rating) of at least fully successful or equivalent
and a recommendation for conversion by the first-level supervisor (or
in the case of a participant in an OPM-administered governmentwide
Pathways Leadership Development Program under Sec. 362.110, has been
certified as successfully completing the Program by both OPM and the
employing agency's Executive Resources Board); and
(3) Met the OPM Qualification Standard for the position to which
the Recent Graduate will be converted.
(b) An agency must make the noncompetitive conversion effective on
the date the service requirement is met, or at the end of an agency-
approved extension, if applicable.
(c) A Recent Graduate may be converted to a permanent or term
position in the competitive service, or to a permanent Schedule Policy/
Career position when authorized under Sec. 362.107, at a different
agency when the following conditions are met:
(1) The employing (or losing) agency is unable to convert the
Recent Graduate to a term or permanent position in the competitive
service or a permanent position in the excepted service under Schedule
Policy/Career in the current organizational unit of the employing
agency or another component within the same Department or agency. The
reasons for conversion at another agency may include unforeseen
budgetary constraints; reorganizations; abolishment of positions;
completion of cohort-based Pathways programs; or other appropriate
reasons. Such a conversion to another agency may not be due to issues
related to misconduct, poor performance, or suitability;
(2) Conversion must occur on or before the end of the prescribed
Program period, plus any agency-approved extension; and
(3) The position at the new agency must have a full performance
level that is equivalent to or lower than the position to which the
Recent Graduate would have been converted at the prior agency.
PART 432--PERFORMANCE BASED REDUCTION IN GRADE AND REMOVAL ACTIONS
0
53. The authority citation for part 432 is revised to read as follows:
Authority: 5 U.S.C. 4303, 4305; E.O. 14284, 90 FR 17729; E.O.
14317, 90 FR 34753.
0
54. Amend Sec. 432.102 by revising paragraph (f)(11) to read as
follows:
Sec. 432.102 Coverage.
* * * * *
(f) * * *
(11) An employee occupying a position in Schedule C, Schedule G, or
Schedule Policy/Career as authorized under part 213 of this chapter;
* * * * *
PART 550--PAY ADMINISTRATION (GENERAL)
Subpart G--Severance Pay
0
55. The authority citation for subpart G of part 550 is revised to read
as follows:
Authority: 5 U.S.C. 5595; E.O. 11257, 30 FR 14353, 3 CFR, 1964-
1965 Comp., p. 357; E.O. 14317, 90 FR 34753; E.O. 14410, 91 FR
34893.
0
56. Amend the definition of ``Nonqualifying appointment'' in Sec.
550.703 by revising paragraph (e) to read as follows:
Sec. 550.703 Definitions.
* * * * *
Nonqualifying appointment * * *
(e) An excepted appointment under Schedule C or Schedule G; a
noncareer appointment in the Senior Executive Service, as defined in 5
U.S.C. 3132(a); or an equivalent appointment made for similar purposes;
and
* * * * *
PART 731--SUITABILITY AND FITNESS
0
57. The authority citation for part 731 is revised to read as follows:
Authority: 5 U.S.C. 1103, 1302, 2301, 2302, 3301, 7301. E.O.
10577, 19 FR 7521, 3 CFR, 1954-1958 Comp., p. 218, as amended. E.O.
13467, 73 FR 38103, 3 CFR, 2009 Comp., p. 198, as amended. E.O.
13488, 74 FR 4111, 3 CFR, 2010 Comp., p. 189, as amended. E.O.
13764, 82 FR 8115, 3 CFR, 2017 Comp., p. 243. E.O. 14210, 90 FR
9669. Presidential Memorandum of January 31, 2014, 3 CFR, 2014
Comp., p. 340. Presidential Memorandum of March 20, 2025, 90 FR
13683. E.O. 14317, 90 FR 34753. 5 CFR parts 1, 2, 5, and 6.
0
58. Amend Sec. 731.101 by revising the definition of ``Political
appointment'' in paragraph (a) to read as follows:
Sec. 731.101 Purpose.
(a) * * *
Political appointment means an appointment by Presidential
nomination for confirmation by the Senate, an appointment by the
President without Senate confirmation (except those appointed under 5
CFR 213.3102(c)); an appointment to a position compensated under the
Executive Schedule (5 U.S.C. 5312 through 5316); an appointment of a
White House Fellow to be assigned as an assistant to a top-level
Federal officer (5 CFR 213.3102(z)); a Schedule C appointment (5 CFR
213.3301 and 213.3302); a Schedule G appointment (5 CFR 213.3701); a
noncareer, limited term, or limited emergency Senior Executive Service
appointment (5 CFR part 317, subpart F); an appointee to serve in a
political capacity under agency-specific authority; and a provisional
political appointment.
* * * * *
PART 920--TIMING OF CRIMINAL HISTORY INQUIRIES
0
59. The authority citation for part 920 is revised to read as follows:
Authority: 5 U.S.C. 1103(a)(5)(A), 9201-9206; Pub. L. 116-92,
sec. 1122(b)(1) (5 U.S.C. 9201 note); E.O. 14317, 90 FR 34753.
0
60. Amend Sec. 920.101 by revising the definition of ``Political
appointment'' to read as follows:
Sec. 920.101 Definitions.
* * * * *
Political appointment means an appointment by the President without
Senate confirmation (except those appointed under 5 CFR 213.3102(c));
an appointment to a position compensated under the Executive Schedule
(5 U.S.C. 5312 through 5316); an appointment of a White House Fellow to
be assigned as an assistant to a top-level Federal officer (5 CFR
213.3102(z)); a Schedule C appointment (5 CFR 213.3301, 213.3302); a
Schedule G appointment (5 CFR 213.3701); a noncareer, limited term, or
limited emergency Senior Executive Service appointment (5 CFR part 317,
subpart F); an appointee to serve in a political capacity under agency-
specific authority; and a provisional political appointment.
* * * * *
PART 930--PROGRAMS FOR SPECIFIC POSITIONS AND EXAMINATIONS
(MISCELLANEOUS)
Subpart B--Administrative Law Judge Program
0
61. The authority citation for subpart B is revised to read as follows:
[[Page 59097]]
Authority: 5 U.S.C. 1104(a), 1302(a), 1305, 3105, 3301, 3304,
3323(b), 3344, 4301(2)(D), 5372, and 7521; E.O. 10577, 19 FR 7521, 3
CFR, 1954-1958 Comp., p. 218; E.O. 13843, 83 FR 32755, 3 CFR, 2018
Comp., p. 844; E.O. 14410, 91 FR 34893.
0
62. Amend Sec. 930.201 by revising paragraphs (b), (d), and (e)(1),
removing paragraph (e)(9), and redesignating paragraphs (e)(10) and
(e)(11) as paragraphs (e)(9) and (e)(10), respectively. The revisions
read as follows:
Sec. 930.201 Coverage.
* * * * *
(b) Administrative law judge positions appointed under 5 U.S.C.
3105 are in Schedule E of the excepted service, except that an
administrative law judge whose competitive-service status is preserved
under Sec. 6.8(d) of this chapter remains in the competitive service
for as long as that status is preserved under that section. Except as
otherwise stated in this subpart or other applicable law or regulation,
the rules and regulations applicable to administrative law judge
positions apply without regard to whether the position is in Schedule E
or whether the incumbent retains preserved competitive-service status.
* * * * *
(d) OPM may prescribe qualification, assessment, documentation, or
other requirements for appointment to administrative law judge
positions as necessary to administer this subpart, Sec. 213.3501 of
this chapter, and applicable statutes and Executive orders. OPM is not
required to administer a competitive examination or to prescribe a
competitive examination methodology for appointments to administrative
law judge positions made under Schedule E.
(e) * * *
(1) Establish qualification standards, assessment requirements,
documentation requirements, and other appointment-related requirements
for administrative law judge positions under 5 U.S.C. 3105, Sec.
213.3501 of this chapter, and this subpart B, including any
requirements necessary to determine whether an individual meets the
minimum appointment requirements for an administrative law judge
position;
* * * * *
0
63. Remove and reserve Sec. 930.203.
Sec. 930.203 [Reserved]
0
64. Amend Sec. 930.204 by revising paragraphs (a), (c), (e), and (g)
to read as follows:
Sec. 930.204 Appointments and conditions of employment.
(a) Appointment. An agency may appoint an individual to an
administrative law judge position only under Schedule E in accordance
with Sec. 213.3501 of this chapter, this subpart, and any applicable
OPM policy or guidance. An appointment under this paragraph is subject
to investigation, and an administrative law judge is subject to the
suitability requirements in part 731 of this chapter, as applicable. An
individual appointed to an administrative law judge position under
Schedule E is not subject to a trial period under part 11 of this
chapter.
* * * * *
(c) Appointment of incumbents of newly classified administrative
law judge positions. An agency may appoint an incumbent employee to an
administrative law judge position under Schedule E if the employee is
serving in the position when it is classified as an administrative law
judge position on the basis of legislation, Executive order, or a
decision of a court and if--
(1) The employee is serving under a permanent appointment in the
competitive service or excepted service;
(2) The employee is serving in the position on the day the
legislation, Executive order, or decision of the court on which the
classification of the position is based becomes effective;
(3) OPM receives a recommendation for the employee's appointment
from the agency concerned; and
(4) OPM determines the employee meets the qualification
requirements and minimum appointment requirements for an administrative
law judge position, including the professional license requirement in
paragraph (b) of this section and Sec. 6.3(b) of this chapter.
* * * * *
(e) Promotion.
(1) Part 335 of this chapter does not apply to the promotion of
administrative law judges appointed under Schedule E. Promotion of an
administrative law judge appointed under Schedule E is governed by this
subpart, Sec. 213.3501 of this chapter, and applicable OPM policy or
guidance.
(2) To reclassify an administrative law judge position at a higher
level, the agency must submit a request to OPM. When OPM approves the
higher-level classification, OPM will direct the promotion of the
administrative law judge occupying the position prior to the
reclassification.
(3) For an administrative law judge whose competitive-service
status is preserved under Sec. 6.8(d) of this chapter, promotion
remains subject to this subpart and applicable OPM direction. Part 335
of this chapter applies only to the extent OPM determines it remains
applicable to the preserved competitive-service status and is not
inconsistent with this subpart, Sec. 213.3501 of this chapter, or
applicable Executive orders.
* * * * *
(g) Reinstatement or reappointment. Subject to OPM approval, an
agency may reinstate or reappoint a former administrative law judge who
served under 5 U.S.C. 3105 if the individual meets the qualification
requirements and minimum appointment requirements for an administrative
law judge position, including the professional license requirement in
paragraph (b) of this section and Sec. 6.3(b) of this chapter. A
reinstatement or reappointment under this paragraph must be made under
Schedule E unless the individual is otherwise entitled by law or
regulation to preserved competitive-service status.
* * * * *
0
65. Amend Sec. 930.205 by revising paragraph (b) to read as follows:
Sec. 930.205 Administrative law judge pay system.
* * * * *
(b) Pay level AL-3 is the basic pay level for administrative law
judge positions, except for positions placed at pay levels AL-2 or AL-1
with OPM approval under paragraph (c) of this section.
* * * * *
0
66. Revise Sec. 930.210 to read as follows:
Sec. 930.210 Reduction in force.
(a) Application of reduction in force regulations.
(1) Except as modified by this section, the reduction in force
regulations in part 351 of this chapter apply to administrative law
judges.
(2) An administrative law judge appointed under Schedule E on or
after July 10, 2018, is in the excepted service and, if otherwise
covered by part 351 of this chapter, is a competing employee in the
excepted service tenure group.
(3) An administrative law judge whose competitive-service status is
preserved under Sec. 6.8(d) of this chapter remains in the competitive
service for reduction in force purposes for as long as that status is
preserved under Sec. 6.8(d).
(b) Determination of retention standing.
(1) An agency must determine the retention standing of
administrative law judges in accordance with part 351 of this chapter,
as modified by this section.
[[Page 59098]]
(2) Administrative law judges in the competitive service under
Sec. 6.8(d) of this chapter must be listed on a competitive-service
retention register. Administrative law judges in Schedule E must be
listed on an excepted-service retention register.
(3) Because an agency may not rate the job performance of an
administrative law judge under Sec. 930.206, an agency may not assign,
prepare, or use an administrative law judge performance rating for
reduction in force purposes. The agency must determine the
administrative law judge's performance credit in accordance with the
rules in part 351 of this chapter governing employees who do not have
ratings of record.
(c) Assignment rights.
(1) An agency may, in its discretion, provide assignment rights to
administrative law judges in Schedule E in accordance with Sec.
351.705 of this chapter, under written agency procedures that are
uniformly and consistently applied in the reduction in force.
(2) If an agency adopts assignment rights for Schedule E
administrative law judges under Sec. 351.705 of this chapter, any
assignment right must be limited to positions under the same appointing
authority and must otherwise comply with part 351 of this chapter and
this subpart.
(3) If an agency does not adopt assignment rights for Schedule E
administrative law judges under Sec. 351.705 of this chapter, the
agency may release a Schedule E administrative law judge from the
competitive level in accordance with the order of release under part
351 of this chapter without offering assignment to another position.
(4) An administrative law judge whose competitive-service status is
preserved under Sec. 6.8(d) of this chapter is subject to the
competitive-service assignment right provisions in Sec. 351.701 of
this chapter while that competitive-service status remains preserved.
Nothing in this section requires an agency to assign a competitive-
service administrative law judge to a Schedule E position or to
preserve competitive-service status in a position where such status is
not preserved under Sec. 6.8(d) of this chapter.
(d) Placement assistance.
(1) An administrative law judge in the competitive service who is
reached in an agency's reduction in force and receives a notification
of separation is eligible for placement assistance under the agency's
reemployment priority list established and maintained in accordance
with subpart B of part 330 of this chapter.
(2) A Schedule E administrative law judge who is separated,
furloughed, or demoted by reduction in force does not, solely by virtue
of service in a Schedule E administrative law judge position or
appointment under 5 U.S.C. 3105, have a statutory entitlement to
priority consideration, priority referral, or reemployment as an
administrative law judge.
(3) Nothing in this section limits any restoration, reemployment,
placement, or priority-consideration right that an individual may have
under 5 U.S.C. 8151, part 353 of this chapter, 5 U.S.C. 3315, 5 U.S.C.
3320, the Uniformed Services Employment and Reemployment Rights Act, a
final order, or another applicable statute, regulation, or binding
legal authority.
(4) OPM or an agency may establish discretionary placement-
assistance procedures for administrative law judges separated,
furloughed, or demoted by reduction in force. Any discretionary
placement-assistance procedure must be in writing and must state its
coverage, duration, order of consideration, geographic scope,
qualification requirements, and any conditions for termination of
eligibility. A discretionary placement-assistance procedure does not
create a statutory entitlement to priority consideration, priority
referral, or reemployment.
0
67. Amend Sec. 930.211 by revising paragraph (c) introductory text and
paragraph (c)(3) to read as follows:
Sec. 930.211 Actions against administrative law judges.
* * * * *
(c) Exceptions from procedures. This section does not apply--
* * * * *
(3) To reduction in force actions taken under 5 U.S.C. 3502, part
351 of this chapter, and Sec. 930.210; or
* * * * *
[FR Doc. 2026-19222 Filed 9-17-26; 8:45 am]
BILLING CODE 6325-39-P
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