81 FR 86290 - Employment in the Excepted Service

OFFICE OF PERSONNEL MANAGEMENT

Federal Register Volume 81, Issue 230 (November 30, 2016)

The Office of Personnel Management (OPM) is proposing to revise its regulations governing employment in the excepted service. The proposed 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 proposed changes is to strengthen the application of veterans' entitlements in the excepted service.

[Federal Register Volume 81, Number 230 (Wednesday, November 30, 2016)]
[Proposed Rules]
[Pages 86290-86291]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-28783]


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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. 81, No. 230 / Wednesday, November 30, 2016 / 
Proposed Rules

[[Page 86290]]



 OFFICE OF PERSONNEL MANAGEMENT

5 CFR Parts 302

RIN 3206-AN30


Employment in the Excepted Service

AGENCY: Office of Personnel Management.

ACTION: Proposed rule.

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SUMMARY: The Office of Personnel Management (OPM) is proposing to 
revise its regulations governing employment in the excepted service. 
The proposed 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 proposed changes is to strengthen the application of 
veterans' entitlements in the excepted service.

DATES: Comments must be received on or before January 30, 2017.

ADDRESSES: You may submit comments, identified by Regulation 
Identification Number (RIN) ``3206-AN30'' using any of the following 
methods:
    Federal eRulemaking Portal: http://www.regulations.gov. Follow the 
instructions for submitting comments. All submissions received through 
the Portal must include the agency name and docket number or Regulation 
Identification Number (RIN) for this rulemaking.
    Email: [email protected]. Include ``RIN 3206-AN30, Excepted Service'' 
in the subject line of the message.
    Fax: (202) 606-2329.
    Mail: Kimberly A. Holden, Deputy Associate Director for Recruitment 
and Hiring, U.S. Office of Personnel Management, Room 6551, 1900 E 
Street NW., Washington, DC 20415-9700.
    Hand Delivery/Courier: U.S. Office of Personnel Management, Room 
6500, 1900 E Street NW., Washington, DC 20415-9700.

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: The Office of Personnel Management (OPM) is 
proposing to revise the regulations governing employment in the 
excepted service. OPM is proposing these changes to clarify the 
existing policy on exemptions from excepted service selection 
procedures, and provide additional procedures for passing over a 
preference eligible veteran.

Background

    All Federal civilian employees occupy positions in the competitive 
service, the excepted service, or the Senior Executive Service. The 
main differences between the three employment systems are in the manner 
that candidates apply for jobs and in the opportunity for appointees to 
move within the Federal service. Each employment system is covered by 
different laws and regulations.
    The term ``excepted service'' covers a variety of situations. 
Entire agencies may be placed in the excepted service by statute. 
Positions in large parts of agencies (such as components or offices 
within agencies) as well as individual positions may be placed in the 
excepted service. If positions are placed in the excepted service (by 
law, Executive order, or OPM regulation), it means they have been 
excepted from certain requirements of the competitive service or the 
Senior Executive Service. However, the reasons for and scope of the 
exceptions will vary, depending on the circumstances surrounding their 
exception and who is authorizing the exception. If positions are not in 
the competitive service and are subject to the provisions of Title 5, 
United States Code, or are subject to a statutory requirement to follow 
veterans preference provisions of Title 5, then the agencies with such 
positions must follow the employment procedures outlined by OPM in its 
regulations (which are the ones addressed in this proposed regulation).

Positions Exempt From Appointment Procedures

    OPM can exempt positions from the appointment procedures for the 
excepted service. The reasons for exemption will vary based on the 
reasons why the rating and ranking procedures outlined in OPM's 
regulation would be difficult for an agency to implement. The positions 
that OPM has exempted from the appointment procedures of 5 CFR part 302 
are listed at 5 CFR 302.101(c). Per 5 CFR 302.101(c), agencies must 
follow the principle of veterans' preference as far as administratively 
feasible when filling an ``exempted'' position in the excepted service.
    We propose clarifying the exemption listed at 5 CFR 302.101(c)(6). 
This exemption is for, ``positions included in Schedule A (see subpart 
C of part 213 of this chapter) and similar types of positions when OPM 
agrees with the agency that the positions should be included 
hereunder.'' As so written, this exemption may be construed to suggest 
that all Schedule A appointing authorities are exempt from the excepted 
service appointment procedures of part 302, however, such a 
construction is not correct. Therefore, we propose revising this 
exemption to say, ``Positions included in Schedule A (see subpart C of 
part 213 of this chapter) for which OPM states in writing that an 
agency is not required to fill the positions according to the 
procedures in this subpart.'' We believe this clarification will 
eliminate any potential ambiguity that all Schedule A positions are 
subject to the application of veterans' preference only as far as 
administratively feasible. Additionally, we are proposing to clarify 
that positions filled under 5 CFR 213.3102(u) by persons with 
intellectual disabilities, severe physical disabilities, or psychiatric 
disabilities are exempt from the procedures of part 302.

Passing Over a Preference Eligible

    We propose modifying the regulations for the passing over of a 
preference eligible adding specific procedures. The change will require 
that an agency must follow the procedures in 5 U.S.C. 3318(c) (which 
also apply to category rating under 5 U.S.C. 3319(c)(7)) which are 
described in the Delegated Examining Operations Handbook. We are making 
this change in response to the U.S. Court of Appeals for the Federal 
Circuit's decision in Gingery v. Department of Defense, 550 F.3d 1347 
(Fed. Cir. 2008). Under Gingery, when excepted service positions are 
not exempted from the hiring requirements in 5 CFR 302.101, and 
applicants are

[[Page 86291]]

hired from certificates--including through category rating--the pass 
over rules in 5 U.S.C. 3318 generally apply. See also Dean v. 
Department of Labor, 808 F.3d 497, 507 (Fed. Cir. 2015); Jarrard v. 
Department of Justice, 669 F.3d 1320, 1323 (Fed. Cir. 2012). The court 
in Gingery ruled that the current text in 5 CFR 302.401(b) is invalid, 
on grounds that it does not provide pass-over protections generally 
available to preference-eligible applicants under 5 U.S.C. 3318(b)(1) 
(since renumbered as 5 U.S.C. 3318(c)(1)), or the pass-over protections 
specifically available to preference eligibles with 30-percent or more 
compensable service-connected disabilities under 5 U.S.C. 3318(b)(2) 
and (b)(4) (since renumbered as 5 U.S.C. 3318(c)(2) and (c)(4)). See 
550 F.3d at 1353-54.
    OPM issued guidance on the Gingery decision on February 9, 2009, 
and clarified this guidance on March 12, 2009. However, OPM has not yet 
amended the text of the regulation. We are proposing to amend section 
302.401(b) of our regulations to conform to the pass-over procedures in 
5 U.S.C. 3318(c).
    OPM notes that Public Law 114-137, the Competitive Service Act of 
2015, recently amended 5 U.S.C. 3318 and 3319 to permit the use of 
shared certificates. This proposed rule does not address the 
Competitive Service Act. OPM will initiate a separate regulatory action 
to implement the Competitive Service Act.

E.O. 12866, Regulatory Review

    This rule has been reviewed by the Office of Management and Budget 
in accordance with E.O. 12866.

Regulatory Flexibility Act

    I certify that these regulations would not have a significant 
economic impact on a substantial number of small entities because they 
would apply only to Federal agencies and employees.

List of Subjects in 5 CFR Part 302

    Government employees.

U.S. Office of Personnel Management.
Beth F. Cobert,
Acting Director.

    Accordingly, OPM is proposing to revise 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, 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 to revise paragraph (c)(6) and to add 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. Revise Sec.  302.401(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)(7) 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. 2016-28783 Filed 11-29-16; 8:45 am]
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