Employment in the Excepted Service, 63189-63191 [2020-19498]
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63189
Rules and Regulations
Federal Register
Vol. 85, No. 195
Wednesday, October 7, 2020
This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by
the Superintendent of Documents.
OFFICE OF PERSONNEL
MANAGEMENT
5 CFR Part 302
RIN 3206–AN30
Employment in the Excepted Service
Office of Personnel
Management.
ACTION: Final rule.
AGENCY:
The Office of Personnel
Management (OPM) is issuing final
regulations governing employment in
the excepted service. The rules will
clarify the existing policy on
exemptions from excepted service
selection procedures and provide
additional procedures for passing over a
preference eligible veteran. The
intended effect of these changes is to
align the regulations with binding case
law and thus strengthen the application
of veterans’ entitlements in the excepted
service.
DATES: The final rule is effective
November 6, 2020.
FOR FURTHER INFORMATION CONTACT:
Katika Floyd by telephone at (202) 606–
0960; by email at employ@opm.gov; by
fax at (202) 606–2329; or by TTY at
(202) 418–3134.
SUPPLEMENTARY INFORMATION: On
November 30, 2016 the Office of
Personnel Management (OPM) issued a
proposed rule (81 FR 86290) to clarify
the existing policy on exemptions from
excepted service selection procedures
and provide additional procedures for
passing over a preference eligible
veteran in accordance with binding case
law.
During the 60-day comment period
between November 30, 2016, and
January 30, 2017, OPM received three
sets of comments, of which two were
from individuals and one was from a
Federal Agency.
Two individuals provided comments
that were beyond the scope of the
proposed rule. As summarized below,
OPM is not adopting these comments:
SUMMARY:
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• One individual suggested that OPM
develop a new excepted service
Schedule for positions in Schedules A
and B in which the procedures of 5 CFR
part 302 are required; all excepted
service positions not listed by OPM
would presumptively be exempt from
part 302’s appointment procedures.
OPM is not adopting this comment
because the current regulatory structure,
in which exemptions are specifically
listed, is more in keeping with the
general rules for excepted service hiring
in 5 U.S.C. 3320.
• One individual suggested OPM
include a cross-reference to 5 CFR part
302 procedures in the listing of
Schedule A and B authorities required
by 5 CFR part 213. Another individual
suggested that the annual Federal
Register notice of the consolidated
listing of Schedules A, B, and C
exceptions include information about
whether the individual positions are
exempt from 302 procedures. OPM is
not adopting this comment. The notice
requirements in 5 CFR 213.103 are
unrelated to appointment procedures.
The purpose of those requirements,
promulgated pursuant to Civil Service
Rule VI, 5 CFR 6.1, is to inform the
public and agencies of OPM’s decision
granting the excepted appointing
authority.
• One individual requested that OPM
clarify the provisions for conversion to
the competitive service of employees
serving on Pathways appointments and
Veterans Recruitment Appointments.
OPM is not adopting this comment
because the provisions for conversion in
5 CFR part 307 and part 362 are a
separate matter, and, in any event, we
believe that they are sufficiently clear.
• One individual suggested that OPM
revise 5 CFR part 302 to include
Alternative Rating and Selection
Procedures (i.e., category rating). We
note that a change to this provision was
not included in the proposed rule that
OPM published in 2016. Moreover, it is
not necessary for OPM to adopt this
comment, because agencies already
have the option, under § 302.105, of
adopting category rating-like selection
procedures, as long as those procedures
provide preference eligibles with as
much advantage in referral as they
would otherwise receive under the
methods specified in part 302. OPM will
consider making this change in
conjunction with a future package
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intended to address intervening
statutory amendments.
Positions Exempt From Appointment
Procedures
One individual suggested that for
positions exempt from the appointment
procedures in part 302, OPM clarify the
phrase ‘‘each agency must follow the
principle of veteran preference as far as
administratively feasible’’ as used in
§ 302.101(c) or provide guidance in light
of the Merit System Protection Board
(MSPB) case, Jarrard v. Social Security
Administration, 115 M.S.P.R. 397
(2010), aff’d sub nom. Jarrard v.
Department of Justice, 669 F.3d 1320
(Fed. Cir. 2012). We see no need to
amend the rule to explain the meaning
of this phrase. This standard was
discussed at length in Patterson v.
Department of the Interior, 424 F.3d
1151 (Fed. Cir. 2005), a precedential
decision in which the U.S. Court of
Appeals for the Federal Circuit accepted
the Government’s argument that it was
not possible to give attorney applicants
veterans’ preference points under 5
U.S.C. 3309 because an appropriations
law prohibits the use of examination
and rating in attorney hiring. In that
litigation, OPM took the position that
the phrase ‘‘follow the principle of
veteran preference as far as
administratively feasible’’ means that
veterans’ preference must be considered
as a positive factor in the selection
process. See Patterson, 424 F.3d at
1156–57. The Federal Circuit sustained
OPM’s position. Id. at 1159–1160 (‘‘The
positive factor test, in turn, strikes us as
a reasonable way of ‘follow[ing] the
principle of veteran preference as far as
administratively feasible,’ 5 CFR
302.101(c), in the case of a preference
eligible applying for an excepted service
attorney position.’’). This is the test
OPM continues to regard as appropriate
for positions exempted by § 302.101(c).
We note that this definition had
previously been used by the Department
of Justice, in a 1979 opinion addressing
what is required for attorney hiring. 3
U.S. Op. Off. Legal Counsel 140, 1979
WL 16553 (O.L.C.), at 146–147 (‘‘The
Department routinely applies the
Veterans Preference Act in a meaningful
fashion to attorney-hiring. . . . That an
applicant is a preference eligible is
weighed as a positive factor in the
Department’s attorney-hiring program,
[footnote omitted] . . . . When the
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Federal Register / Vol. 85, No. 195 / Wednesday, October 7, 2020 / Rules and Regulations
veteran’s other qualifications place him
or her in close competition, the veteran
is preferred over other applicants with
substantially equal qualifications.’’). We
note one exception. As observed below,
if OPM determines that part 302’s
appointment procedures apply to an
agency-specific appointing authority
under § 302.101(c)(6), OPM’s approval
of the appointing authority will address
the procedures that apply.
One individual recommended that
positions for readers for blind
employees, interpreters for deaf
employees and personal assistants for
handicapped employees filled under 5
CFR 213.3102(ll) should be exempt from
the procedures in 5 CFR 302. The
commenter noted that employees in the
reader and assistant positions are used
to fill positions that support disabled
employees who may have been
appointed under 5 CFR 213.3102(u)
(which is exempt from 302 procedures),
so the reader and personal assistant
positions should also be exempt. OPM
is not adopting this recommendation.
OPM has no basis or evidence which
suggests that agencies cannot apply part
302 when filling positions under 5 CFR
213.3102(ll), or that part 302 would
otherwise create significant barriers to
filling these positions. We note that no
agency has contacted OPM for an
agency-specific exemption for positions
filled under 5 CFR 213.3102(ll). A key
distinction between the two hiring
authorities is that under 5 CFR
213.3102(u) an applicant can
demonstrate his or her ability to do the
job during a trial period or temporary
appointment. Such is not the case for
positions filled using 5 CFR
213.3102(ll).
One individual, commenting on
OPM’s proposal to amend 5 CFR
302.101(c)(6), expressed concern that
‘‘OPM with this change is in essence
requiring 5 CFR 302 competition for
positions for which it is impractical to
examine.’’ Section 302.101(c)(6) had
stated that positions in schedule A of
the excepted service were exempt from
the appointment procedures in part 302
‘‘when OPM agrees with the agency that
the positions should be included
hereunder.’’ OPM proposed amending
this text to state that positions in
schedule A of the excepted service are
exempt from the appointment
procedures in part 302 when ‘‘OPM
agrees with the agency that the positions
should be included hereunder and
states in writing that an agency is not
required to fill positions according to
the procedures in this part.’’ As OPM
explained in the accompanying Federal
Register notice, this is a clarification,
not a substantive change. See 81 FR
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15:59 Oct 06, 2020
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86290. The fact that ‘‘it is not
practicable to examine’’ for a position,
requiring its placement in schedule A of
the excepted service, does not
automatically make part 302
inapplicable; but rather, reflects the
impracticability of applying ‘‘the
qualification standards and
requirements established for the
competitive service’’ when hiring for the
position. 5 CFR 213.3101. OPM’s
written approvals of schedule A
appointing authorities specify whether
any of the procedures in part 302 apply.
Applying Veterans Preference
One agency commented that Sole
Survivorship Preference (as defined in 5
CFR part 211) needs to be addressed in
§§ 302.201(b), 302.303(d), and
302.304(b)(5). OPM agrees and has
updated these sections in the final rule
accordingly.
This agency also asked OPM to clarify
selections under § 302.401(a) when
fewer than three candidates remain in
the highest preference category. Section
302.401(c) states, in part, ‘‘an agency
must make its selection from the highest
available preference category, as long as
at least three candidates remain in that
group. When fewer than three
candidates remain in the highest
category, consideration may be
expanded to include the next category.’’
In instances in which two preference
categories are merged, an agency may
select any preference eligible in the
newly merged category. The order of
selection is described elsewhere in the
regulations. Because we believe the text
of the rule is clear, we are not adopting
the comment.
Technical Change Required by a
Recently-Enacted Statute
The August 13, 2018 enactment of
Public Law 115–232, the John S.
McCain National Defense Authorization
Act for FY 2019 (NDAA), requires a
technical amendment. Sections
1107(b)(1)(B) and (d) of the NDAA
provide that effective on the date when
OPM issues a final rule to implement
section 1107 of the NDAA, subsection
(b)(7) of 5 U.S.C. 3319 will be
redesignated as subsection (b)(6).
OPM has not yet issued a final rule to
implement section 1107 of the NDAA,
but when it does so, the reference to 5
U.S.C. 3319(c)(7) will become obsolete.
To avoid the need for future technical
and conforming amendments, this final
rule replaces the specific reference to 5
U.S.C. 3319(c)(7) with a more general
reference to 5 U.S.C. 3319(c).
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Regulatory Review
Executive Orders 13563 and 12866
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). Executive Order 13563
emphasizes the importance of
quantifying both costs and benefits, of
reducing costs, of harmonizing rules,
and of promoting flexibility. This rule
has been designated by OMB as a
‘‘significant regulatory action’’ but not
an ‘‘economically significant’’
regulatory action as described under
Section 3(f)(1) under Executive Order
12866.
Reducing Regulation and Controlling
Regulatory Costs
This rule is not expected to be subject
to the requirements of E.O. 13771 (82 FR
9339, February 3, 2017) because this
rule imposes no more than de minimis
costs.
Regulatory Flexibility Act
I certify that this regulation will not
have a significant impact on a
substantial number of small entities
because it applies only to Federal
agencies and employees.
Federalism
This regulation will not have
substantial direct effects on the States,
on the relationship between the
National Government and the States, or
on distribution of power and
responsibilities among the various
levels of government. Therefore, in
accordance with Executive Order 13132,
it is determined that this rule does not
have sufficient federalism implications
to warrant preparation of a Federalism
Assessment.
Civil Justice Reform
This regulation meets the applicable
standard set forth in section 3(a) and
(b)(2) of Executive Order 12988.
Unfunded Mandates Reform Act of
1995
This rule will not result in the
expenditure by State, local or tribal
governments of more than $100 million
annually. Thus, no written assessment
of unfunded mandates is required.
Congressional Review Act
This action is subject to the CRA, 5
U.S.C. 801 et seq., and OPM will submit
a rule report to each House of the
Congress and to the Comptroller General
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Federal Register / Vol. 85, No. 195 / Wednesday, October 7, 2020 / Rules and Regulations
of the United States. This action is a not
‘‘major rule’’ as defined by 5 U.S.C.
804(2).
Paperwork Reduction Act of 1995 (44
U.S.C. Chapter 35)
This final regulatory action will not
impose any additional reporting or
recordkeeping requirements under the
Paperwork Reduction Act.
List of Subjects in 5 CFR Part 302
Government employees.
Office of Personnel Management.
Alexys Stanley,
Regulatory Affairs Analyst.
Accordingly, OPM is amending 5 CFR
part 302 as follows:
PART 302—EMPLOYMENT IN THE
EXCEPTED SERVICE
1. The authority citation for part 302
continues to read as follows:
■
Authority: 5 U.S.C. 1302, 3301, 3302, 3317,
3318, 3319, 3320, 8151, E.O. 10577 (3 CFR
1954–1958 Comp., p. 218); § 302.105 also
issued under 5 U.S.C. 1104, Pub. L. 95–454,
sec. 3(5); § 302.501 also issued under 5 U.S.C.
7701 et seq.
2. Amend § 302.101 by revising
paragraph (c)(6) and adding paragraph
(c)(11) to read as follows:
■
§ 302.101 Positions covered by
regulations.
*
*
*
*
*
(c) * * *
(6) Positions included in Schedule A
(see subpart C of part 213 of this
chapter) for which OPM agrees with the
agency that the positions should be
included hereunder and states in
writing that an agency is not required to
fill positions according to the
procedures in this part.
*
*
*
*
*
(11) Appointment of persons with
intellectual disabilities, severe physical
disabilities, or psychiatric disabilities to
positions filled under 5 CFR
213.3102(u).
■ 3. Amend § 302.201 by revising
paragraph (b) to read as follows:
§ 302.201 Persons entitled to veteran
preference.
*
*
*
*
*
(b) When eligible candidates are
referred without ranking, the agency
shall note preference as ‘‘CP’’ for
preference eligibles under 5 U.S.C.
2108(3)(C), as ‘‘XP’’ for preference
eligibles under 5 U.S.C. 2108(3)(D)
through (G), as ‘‘SSP’’ for preference
eligibles under 5 U.S.C. 2108(3)(H) and
as ‘‘TP’’ for all other preference eligibles
under that title.
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15:59 Oct 06, 2020
Jkt 250001
4. Amend § 302.303 by revising
paragraph (d) to read as follows:
■
§ 302.303
lists.
Maintenance of employment
*
*
*
*
*
(d) Order of entry. An agency shall
enter the names of all applicants rated
eligible under § 302.302 on the
appropriate list (priority reemployment,
reemployment, or regular employment)
in the following order:
(1) When candidates have been rated
only for basic eligibility under
§ 302.302(a). (i) Preference eligibles
having a compensable, serviceconnected disability of 10 percent or
more (designated as ‘‘CP’’) unless the
list will be used to fill professional
positions at the GS–9 level or above, or
equivalent;
(ii) All other candidates eligible for
10-point veteran preference;
(iii) All candidates eligible for 5-point
veteran preference;
(iv) All candidates eligible for sole
survivorship preference and
(v) Qualified candidates not eligible
for veteran preference.
(2) When qualified candidates have
been assigned numerical scores under
§ 302.302(b). (i) Preference eligibles
having a compensable, serviceconnected disability of 10 percent or
more, in the order of their augmented
ratings, unless the list will be used to
fill professional positions at the GS–9
level or above, or equivalent;
(ii) All other qualified candidates in
the order of their augmented ratings. At
each score, qualified candidates eligible
for 10-point preference will be entered
first, followed, second, by 5-point
preference eligibles, third, by sole
survivorship preference eligibles, and
last, by nonpreference eligibles.
■ 5. Amend § 302.304 by revising
paragraph (b)(5) to read as follows:
§ 302.304
Order of consideration.
*
*
*
*
*
(b) * * *
(5) Unranked order. When numerical
scores are not assigned, the agency may
consider applicants who have received
eligible ratings for positions not covered
by paragraph (b)(4) of this section in
either of the following orders:
(i) By preference status. Under this
method, preference eligibles having a
compensable service-connected
disability of 10 percent or more are
considered first, followed, second, by
other 10-point preference eligibles,
third, by 5-point preference eligibles,
fourth by sole survivorship preference
eligibles, and last, by nonpreference
eligibles. Within each category,
applicants from the reemployment list
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63191
will be placed ahead of applicants from
the regular employment list.
(ii) By reemployment/regular list
status. Under this method, all
applicants on the reemployment list are
considered before applicants on the
regular employment list. On each list,
preference eligibles having a
compensable service-connected
disability of 10 percent or more are
considered first, followed, second, by
other 10-point preference eligibles,
third, by 5-point preference eligibles,
fourth by sole survivorship preference
eligibles, and last by nonpreference
eligibles.
■ 6. Amend § 302.401 by revising
paragraph (b) to read as follows:
§ 302.401
Selection and appointment.
*
*
*
*
*
(b) Passing over a preference
applicant. When an agency, in making
an appointment as provided in
paragraph (a) of this section, passes over
the name of a preference eligible, it shall
follow the procedures in 5 U.S.C.
3318(c) and 3319(c) as described in the
Delegated Examining Operations
Handbook. An agency may discontinue
consideration of the name of a
preference eligible for a position as
described in 5 U.S.C. 3318(c).
*
*
*
*
*
[FR Doc. 2020–19498 Filed 10–6–20; 8:45 am]
BILLING CODE 6325–39–P
SMALL BUSINESS ADMINISTRATION
13 CFR Part 134
RIN 3245–AH01
Regulatory Reform Initiative: Rules of
Procedure Governing Cases Before the
Office of Hearings and Appeals
U.S. Small Business
Administration.
ACTION: Final rule.
AGENCY:
With this deregulatory action,
the U.S. Small Business Administration
(SBA) is revising regulations regarding
rules of procedure governing cases
before the Office of Hearings and
Appeals (OHA) to remove an
unnecessary regulatory provision and to
clarify an existing rule of procedure.
DATES: This rule is effective November
6, 2020.
FOR FURTHER INFORMATION CONTACT:
Delorice Price Ford, Assistant
Administrator, Office of Hearings and
Appeals, (202) 401–8200 or
delorice.ford@sba.gov.
SUPPLEMENTARY INFORMATION:
SUMMARY:
E:\FR\FM\07OCR1.SGM
07OCR1
Agencies
[Federal Register Volume 85, Number 195 (Wednesday, October 7, 2020)]
[Rules and Regulations]
[Pages 63189-63191]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-19498]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
========================================================================
Federal Register / Vol. 85, No. 195 / Wednesday, October 7, 2020 /
Rules and Regulations
[[Page 63189]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 302
RIN 3206-AN30
Employment in the Excepted Service
AGENCY: Office of Personnel Management.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Office of Personnel Management (OPM) is issuing final
regulations governing employment in the excepted service. The rules
will clarify the existing policy on exemptions from excepted service
selection procedures and provide additional procedures for passing over
a preference eligible veteran. The intended effect of these changes is
to align the regulations with binding case law and thus strengthen the
application of veterans' entitlements in the excepted service.
DATES: The final rule is effective November 6, 2020.
FOR FURTHER INFORMATION CONTACT: Katika Floyd by telephone at (202)
606-0960; by email at [email protected]; by fax at (202) 606-2329; or by
TTY at (202) 418-3134.
SUPPLEMENTARY INFORMATION: On November 30, 2016 the Office of Personnel
Management (OPM) issued a proposed rule (81 FR 86290) to clarify the
existing policy on exemptions from excepted service selection
procedures and provide additional procedures for passing over a
preference eligible veteran in accordance with binding case law.
During the 60-day comment period between November 30, 2016, and
January 30, 2017, OPM received three sets of comments, of which two
were from individuals and one was from a Federal Agency.
Two individuals provided comments that were beyond the scope of the
proposed rule. As summarized below, OPM is not adopting these comments:
One individual suggested that OPM develop a new excepted
service Schedule for positions in Schedules A and B in which the
procedures of 5 CFR part 302 are required; all excepted service
positions not listed by OPM would presumptively be exempt from part
302's appointment procedures. OPM is not adopting this comment because
the current regulatory structure, in which exemptions are specifically
listed, is more in keeping with the general rules for excepted service
hiring in 5 U.S.C. 3320.
One individual suggested OPM include a cross-reference to
5 CFR part 302 procedures in the listing of Schedule A and B
authorities required by 5 CFR part 213. Another individual suggested
that the annual Federal Register notice of the consolidated listing of
Schedules A, B, and C exceptions include information about whether the
individual positions are exempt from 302 procedures. OPM is not
adopting this comment. The notice requirements in 5 CFR 213.103 are
unrelated to appointment procedures. The purpose of those requirements,
promulgated pursuant to Civil Service Rule VI, 5 CFR 6.1, is to inform
the public and agencies of OPM's decision granting the excepted
appointing authority.
One individual requested that OPM clarify the provisions
for conversion to the competitive service of employees serving on
Pathways appointments and Veterans Recruitment Appointments. OPM is not
adopting this comment because the provisions for conversion in 5 CFR
part 307 and part 362 are a separate matter, and, in any event, we
believe that they are sufficiently clear.
One individual suggested that OPM revise 5 CFR part 302 to
include Alternative Rating and Selection Procedures (i.e., category
rating). We note that a change to this provision was not included in
the proposed rule that OPM published in 2016. Moreover, it is not
necessary for OPM to adopt this comment, because agencies already have
the option, under Sec. 302.105, of adopting category rating-like
selection procedures, as long as those procedures provide preference
eligibles with as much advantage in referral as they would otherwise
receive under the methods specified in part 302. OPM will consider
making this change in conjunction with a future package intended to
address intervening statutory amendments.
Positions Exempt From Appointment Procedures
One individual suggested that for positions exempt from the
appointment procedures in part 302, OPM clarify the phrase ``each
agency must follow the principle of veteran preference as far as
administratively feasible'' as used in Sec. 302.101(c) or provide
guidance in light of the Merit System Protection Board (MSPB) case,
Jarrard v. Social Security Administration, 115 M.S.P.R. 397 (2010),
aff'd sub nom. Jarrard v. Department of Justice, 669 F.3d 1320 (Fed.
Cir. 2012). We see no need to amend the rule to explain the meaning of
this phrase. This standard was discussed at length in Patterson v.
Department of the Interior, 424 F.3d 1151 (Fed. Cir. 2005), a
precedential decision in which the U.S. Court of Appeals for the
Federal Circuit accepted the Government's argument that it was not
possible to give attorney applicants veterans' preference points under
5 U.S.C. 3309 because an appropriations law prohibits the use of
examination and rating in attorney hiring. In that litigation, OPM took
the position that the phrase ``follow the principle of veteran
preference as far as administratively feasible'' means that veterans'
preference must be considered as a positive factor in the selection
process. See Patterson, 424 F.3d at 1156-57. The Federal Circuit
sustained OPM's position. Id. at 1159-1160 (``The positive factor test,
in turn, strikes us as a reasonable way of `follow[ing] the principle
of veteran preference as far as administratively feasible,' 5 CFR
302.101(c), in the case of a preference eligible applying for an
excepted service attorney position.''). This is the test OPM continues
to regard as appropriate for positions exempted by Sec. 302.101(c). We
note that this definition had previously been used by the Department of
Justice, in a 1979 opinion addressing what is required for attorney
hiring. 3 U.S. Op. Off. Legal Counsel 140, 1979 WL 16553 (O.L.C.), at
146-147 (``The Department routinely applies the Veterans Preference Act
in a meaningful fashion to attorney-hiring. . . . That an applicant is
a preference eligible is weighed as a positive factor in the
Department's attorney-hiring program, [footnote omitted] . . . . When
the
[[Page 63190]]
veteran's other qualifications place him or her in close competition,
the veteran is preferred over other applicants with substantially equal
qualifications.''). We note one exception. As observed below, if OPM
determines that part 302's appointment procedures apply to an agency-
specific appointing authority under Sec. 302.101(c)(6), OPM's approval
of the appointing authority will address the procedures that apply.
One individual recommended that positions for readers for blind
employees, interpreters for deaf employees and personal assistants for
handicapped employees filled under 5 CFR 213.3102(ll) should be exempt
from the procedures in 5 CFR 302. The commenter noted that employees in
the reader and assistant positions are used to fill positions that
support disabled employees who may have been appointed under 5 CFR
213.3102(u) (which is exempt from 302 procedures), so the reader and
personal assistant positions should also be exempt. OPM is not adopting
this recommendation. OPM has no basis or evidence which suggests that
agencies cannot apply part 302 when filling positions under 5 CFR
213.3102(ll), or that part 302 would otherwise create significant
barriers to filling these positions. We note that no agency has
contacted OPM for an agency-specific exemption for positions filled
under 5 CFR 213.3102(ll). A key distinction between the two hiring
authorities is that under 5 CFR 213.3102(u) an applicant can
demonstrate his or her ability to do the job during a trial period or
temporary appointment. Such is not the case for positions filled using
5 CFR 213.3102(ll).
One individual, commenting on OPM's proposal to amend 5 CFR
302.101(c)(6), expressed concern that ``OPM with this change is in
essence requiring 5 CFR 302 competition for positions for which it is
impractical to examine.'' Section 302.101(c)(6) had stated that
positions in schedule A of the excepted service were exempt from the
appointment procedures in part 302 ``when OPM agrees with the agency
that the positions should be included hereunder.'' OPM proposed
amending this text to state that positions in schedule A of the
excepted service are exempt from the appointment procedures in part 302
when ``OPM agrees with the agency that the positions should be included
hereunder and states in writing that an agency is not required to fill
positions according to the procedures in this part.'' As OPM explained
in the accompanying Federal Register notice, this is a clarification,
not a substantive change. See 81 FR 86290. The fact that ``it is not
practicable to examine'' for a position, requiring its placement in
schedule A of the excepted service, does not automatically make part
302 inapplicable; but rather, reflects the impracticability of applying
``the qualification standards and requirements established for the
competitive service'' when hiring for the position. 5 CFR 213.3101.
OPM's written approvals of schedule A appointing authorities specify
whether any of the procedures in part 302 apply.
Applying Veterans Preference
One agency commented that Sole Survivorship Preference (as defined
in 5 CFR part 211) needs to be addressed in Sec. Sec. 302.201(b),
302.303(d), and 302.304(b)(5). OPM agrees and has updated these
sections in the final rule accordingly.
This agency also asked OPM to clarify selections under Sec.
302.401(a) when fewer than three candidates remain in the highest
preference category. Section 302.401(c) states, in part, ``an agency
must make its selection from the highest available preference category,
as long as at least three candidates remain in that group. When fewer
than three candidates remain in the highest category, consideration may
be expanded to include the next category.'' In instances in which two
preference categories are merged, an agency may select any preference
eligible in the newly merged category. The order of selection is
described elsewhere in the regulations. Because we believe the text of
the rule is clear, we are not adopting the comment.
Technical Change Required by a Recently-Enacted Statute
The August 13, 2018 enactment of Public Law 115-232, the John S.
McCain National Defense Authorization Act for FY 2019 (NDAA), requires
a technical amendment. Sections 1107(b)(1)(B) and (d) of the NDAA
provide that effective on the date when OPM issues a final rule to
implement section 1107 of the NDAA, subsection (b)(7) of 5 U.S.C. 3319
will be redesignated as subsection (b)(6).
OPM has not yet issued a final rule to implement section 1107 of
the NDAA, but when it does so, the reference to 5 U.S.C. 3319(c)(7)
will become obsolete. To avoid the need for future technical and
conforming amendments, this final rule replaces the specific reference
to 5 U.S.C. 3319(c)(7) with a more general reference to 5 U.S.C.
3319(c).
Regulatory Review
Executive Orders 13563 and 12866 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). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This rule has been designated by OMB as a ``significant
regulatory action'' but not an ``economically significant'' regulatory
action as described under Section 3(f)(1) under Executive Order 12866.
Reducing Regulation and Controlling Regulatory Costs
This rule is not expected to be subject to the requirements of E.O.
13771 (82 FR 9339, February 3, 2017) because this rule imposes no more
than de minimis costs.
Regulatory Flexibility Act
I certify that this regulation will not have a significant impact
on a substantial number of small entities because it applies only to
Federal agencies and employees.
Federalism
This regulation will not have substantial direct effects on the
States, on the relationship between the National Government and the
States, or on distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 13132, it is determined that this rule does not have sufficient
federalism implications to warrant preparation of a Federalism
Assessment.
Civil Justice Reform
This regulation meets the applicable standard set forth in section
3(a) and (b)(2) of Executive Order 12988.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local or
tribal governments of more than $100 million annually. Thus, no written
assessment of unfunded mandates is required.
Congressional Review Act
This action is subject to the CRA, 5 U.S.C. 801 et seq., and OPM
will submit a rule report to each House of the Congress and to the
Comptroller General
[[Page 63191]]
of the United States. This action is a not ``major rule'' as defined by
5 U.S.C. 804(2).
Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35)
This final regulatory action will not impose any additional
reporting or recordkeeping requirements under the Paperwork Reduction
Act.
List of Subjects in 5 CFR Part 302
Government employees.
Office of Personnel Management.
Alexys Stanley,
Regulatory Affairs Analyst.
Accordingly, OPM is amending 5 CFR part 302 as follows:
PART 302--EMPLOYMENT IN THE EXCEPTED SERVICE
0
1. The authority citation for part 302 continues to read as follows:
Authority: 5 U.S.C. 1302, 3301, 3302, 3317, 3318, 3319, 3320,
8151, E.O. 10577 (3 CFR 1954-1958 Comp., p. 218); Sec. 302.105 also
issued under 5 U.S.C. 1104, Pub. L. 95-454, sec. 3(5); Sec. 302.501
also issued under 5 U.S.C. 7701 et seq.
0
2. Amend Sec. 302.101 by revising paragraph (c)(6) and adding
paragraph (c)(11) to read as follows:
Sec. 302.101 Positions covered by regulations.
* * * * *
(c) * * *
(6) Positions included in Schedule A (see subpart C of part 213 of
this chapter) for which OPM agrees with the agency that the positions
should be included hereunder and states in writing that an agency is
not required to fill positions according to the procedures in this
part.
* * * * *
(11) Appointment of persons with intellectual disabilities, severe
physical disabilities, or psychiatric disabilities to positions filled
under 5 CFR 213.3102(u).
0
3. Amend Sec. 302.201 by revising paragraph (b) to read as follows:
Sec. 302.201 Persons entitled to veteran preference.
* * * * *
(b) When eligible candidates are referred without ranking, the
agency shall note preference as ``CP'' for preference eligibles under 5
U.S.C. 2108(3)(C), as ``XP'' for preference eligibles under 5 U.S.C.
2108(3)(D) through (G), as ``SSP'' for preference eligibles under 5
U.S.C. 2108(3)(H) and as ``TP'' for all other preference eligibles
under that title.
0
4. Amend Sec. 302.303 by revising paragraph (d) to read as follows:
Sec. 302.303 Maintenance of employment lists.
* * * * *
(d) Order of entry. An agency shall enter the names of all
applicants rated eligible under Sec. 302.302 on the appropriate list
(priority reemployment, reemployment, or regular employment) in the
following order:
(1) When candidates have been rated only for basic eligibility
under Sec. 302.302(a). (i) Preference eligibles having a compensable,
service-connected disability of 10 percent or more (designated as
``CP'') unless the list will be used to fill professional positions at
the GS-9 level or above, or equivalent;
(ii) All other candidates eligible for 10-point veteran preference;
(iii) All candidates eligible for 5-point veteran preference;
(iv) All candidates eligible for sole survivorship preference and
(v) Qualified candidates not eligible for veteran preference.
(2) When qualified candidates have been assigned numerical scores
under Sec. 302.302(b). (i) Preference eligibles having a compensable,
service-connected disability of 10 percent or more, in the order of
their augmented ratings, unless the list will be used to fill
professional positions at the GS-9 level or above, or equivalent;
(ii) All other qualified candidates in the order of their augmented
ratings. At each score, qualified candidates eligible for 10-point
preference will be entered first, followed, second, by 5-point
preference eligibles, third, by sole survivorship preference eligibles,
and last, by nonpreference eligibles.
0
5. Amend Sec. 302.304 by revising paragraph (b)(5) to read as follows:
Sec. 302.304 Order of consideration.
* * * * *
(b) * * *
(5) Unranked order. When numerical scores are not assigned, the
agency may consider applicants who have received eligible ratings for
positions not covered by paragraph (b)(4) of this section in either of
the following orders:
(i) By preference status. Under this method, preference eligibles
having a compensable service-connected disability of 10 percent or more
are considered first, followed, second, by other 10-point preference
eligibles, third, by 5-point preference eligibles, fourth by sole
survivorship preference eligibles, and last, by nonpreference
eligibles. Within each category, applicants from the reemployment list
will be placed ahead of applicants from the regular employment list.
(ii) By reemployment/regular list status. Under this method, all
applicants on the reemployment list are considered before applicants on
the regular employment list. On each list, preference eligibles having
a compensable service-connected disability of 10 percent or more are
considered first, followed, second, by other 10-point preference
eligibles, third, by 5-point preference eligibles, fourth by sole
survivorship preference eligibles, and last by nonpreference eligibles.
0
6. Amend Sec. 302.401 by revising paragraph (b) to read as follows:
Sec. 302.401 Selection and appointment.
* * * * *
(b) Passing over a preference applicant. When an agency, in making
an appointment as provided in paragraph (a) of this section, passes
over the name of a preference eligible, it shall follow the procedures
in 5 U.S.C. 3318(c) and 3319(c) as described in the Delegated Examining
Operations Handbook. An agency may discontinue consideration of the
name of a preference eligible for a position as described in 5 U.S.C.
3318(c).
* * * * *
[FR Doc. 2020-19498 Filed 10-6-20; 8:45 am]
BILLING CODE 6325-39-P