82_FR_5346 82 FR 5335 - Recruitment and Selection Through Competitive Examination

82 FR 5335 - Recruitment and Selection Through Competitive Examination

OFFICE OF PERSONNEL MANAGEMENT

Federal Register Volume 82, Issue 11 (January 18, 2017)

Page Range5335-5340
FR Document2017-00800

The U.S. Office of Personnel Management (OPM) is issuing an interim rule to implement the Competitive Service Act of 2015 to allow an appointing authority (i.e., the head of a Federal agency or department) to share a competitive certificate with one or more appointing authorities for the purpose of making selections of qualified candidates. The intended effect of this rule is to facilitate the hiring of top talent across Federal agencies.

Federal Register, Volume 82 Issue 11 (Wednesday, January 18, 2017) 
[Federal Register Volume 82, Number 11 (Wednesday, January 18, 2017)]
[Rules and Regulations]
[Pages 5335-5340]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-00800]



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Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / 
Rules and Regulations

[[Page 5335]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Parts 330, 332, and 337

RIN 3206-AN46


Recruitment and Selection Through Competitive Examination

AGENCY: U.S. Office of Personnel Management.

ACTION: Interim rule with request for comments.

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SUMMARY: The U.S. Office of Personnel Management (OPM) is issuing an 
interim rule to implement the Competitive Service Act of 2015 to allow 
an appointing authority (i.e., the head of a Federal agency or 
department) to share a competitive certificate with one or more 
appointing authorities for the purpose of making selections of 
qualified candidates. The intended effect of this rule is to facilitate 
the hiring of top talent across Federal agencies.

DATES: Interim rule effective February 17, 2017; comments must be 
received on or before March 20, 2017.

ADDRESSES: You may submit comments through the Federal eRulemaking 
Portal at http://www.regulations.gov. All submissions received through 
the Portal must include the agency name and docket number or Regulation 
Identifier Number (RIN) for this proposed rulemaking.
    You may also send, deliver, or fax comments to Kimberly A. Holden, 
Deputy Associate Director for Recruitment and Hiring, Employee 
Services, U.S. Office of Personnel Management, Room 6500 AI, 1900 E 
Street NW., Washington, DC 20415-9700; email at [email protected] or by 
fax at (202) 606-4430.

FOR FURTHER INFORMATION CONTACT: Roseanna Ciarlante by telephone on 
(267) 932-8640, by fax at (202) 606-4430, by TTY at (202) 418-3134, or 
by email at [email protected].

SUPPLEMENTARY INFORMATION: On March 18, 2016, the Competitive Service 
Act of 2015 (the ``Act'') was enacted as Public Law 114-137. The Act 
allows an ``appointing authority'' to share a competitive certificate 
issued under delegated examining procedures with one or more 
``appointing authorities'' to make an appointment to a position that is 
in the same occupational series, grade level (or equivalent), and duty 
location during the 240-day period beginning on the date of issuance of 
the certificate of eligibles.
    Under current rules, an appointing authority may share a 
certificate within the bureaus and components of his or her department 
or agency. The current practice allows an appointing authority to 
expedite hiring when multiple vacancies for the same position exist 
throughout his or her organization. For example, suppose that the 
Department of Treasury headquarters human resources (HQ HR) office 
recruits for a Financial Management Specialist, GS-501-12, and hires 
two highly qualified individuals from the certificate of eligibles. 
Treasury's HQ HR office may currently share the certificate with its 
components, like the Bureau of the Fiscal Service and the Internal 
Revenue Service, that have identified Financial Management Specialist 
vacancies that need to be filled. This current practice allows these 
different components with the Department to leverage the recruitment 
efforts already undertaken by the Department.
    While the Act does not define ``appointing authority'' for the 
purpose of shared certificates, its clear purpose is to expand current 
practice to allow an appointing authority to share his or her 
certificates with an appointing authority in other departments or 
agencies, not just within the same agency (e.g., the Department of 
Treasury will now be able to share certificates with the Department of 
Energy). Consistent with this purpose, in this interim rule, OPM refers 
to the ``original hiring agency'' and the ``receiving agency'' with 
respect to shared certificates, rather than using the more generic term 
``appointing authority.''
    Congress's purpose in enacting the Act was to help facilitate 
faster hiring through the sharing of talent across the Government by 
permitting agencies to share resumes and select from among candidates 
who have competed for similar positions at another hiring agency, were 
assessed, and were referred by that agency. The new process will 
benefit agencies who may make selections from among the top rated 
applicants readily available, as well as applicants who through one job 
application may now be considered for more public service opportunities 
in their desired Federal occupation.
    The law specifies that an appointing official can select an 
applicant for appointment from the certificate of another agency 
provided that certain conditions are met.
     The hiring agency seeking to share the certificate may 
share the certificate with one or more hiring agencies only if the 
announcement of the original position stated that the resulting 
certificate may be used by one or more Federal agencies, and applicants 
``opt-in,'' electing to have their applications shared with agencies 
other than the agency posting the job announcement.
     An agency seeking to use another agency's certificate must 
provide advance notice of the available position to its own employees, 
give them up to 10 days to apply, and review their qualifications 
before it can make a selection from the certificate from the original 
hiring agency.
    It is plain from the Act that only the original hiring agency may 
``share'' a certificate with any other agency. But Congress did not 
define precisely what it means to ``share'' the certificate. One 
possible approach is that when the original hiring agency ``shares'' 
the certificate with other agencies they must simultaneously work the 
certificate in a coordinated fashion, accounting for declinations, 
failures to respond, selections, and so on as if they were integrated 
arms of the same employer. (This is how the process might work when a 
department shares a certificate among a number of its different 
components.) Another possible approach is that each of the other 
agencies may work the certificate independently, as if the certificates 
had been referred from the top of a register or inventory. Neither of 
these approaches is compelled by the text of the statute and as such 
OPM has determined that the most reasonable approach, and the one that 
best effectuates Congress's apparent purpose,

[[Page 5336]]

is the latter of the two. A shared certificate of eligibles may be used 
by a receiving agency independently of other receiving agencies. Each 
receiving agency is responsible for establishing a unique instance of a 
case file to document that agency's use of the certificate. This will 
be helpful in the event a receiving agency must later reconstruct its 
hiring actions. Allowing multiple agencies to use certificates 
independently of one another also supports the timeliest and practical 
implementation of these provisions and minimizes the risk of error 
associated with multiple agencies simultaneously working the same 
certificate.
    However, because of the added complexity of any ``sharing'' of 
certificates, the ability to track the distribution of certificates to 
receiving agencies must be a feature of these provisions. Thus, 
whenever the original agency shares a certificate, it must maintain a 
record of any agencies with whom the certificate was shared. This is 
important in the event any errors occur which require reconstruction of 
all hiring actions which flow from a certificate generated by the 
original agency. In this scenario, if an error occurs at the original 
agency, the original agency is responsible solely for notifying each 
succeeding receiving agency that received a shared certificate of the 
error. Any corrective actions or reconstructions subsequent to the 
original agency's would be the responsibility of each receiving agency 
that made a selection.

How It Will Work

    The original hiring agency (i.e., the agency sharing the 
certificate) must issue a certificate in accordance with competitive 
examining procedures for a position it is seeking to fill. This 
includes public notice, rating and ranking, the application of 
veterans' preference, etc. The 240-day window (during which other 
Federal agencies may use the certificate of eligibles to select an 
individual) begins on the date the certificate is issued by the 
original hiring agency. OPM notes that the Competitive Service Act 
includes this 240-day window in 5 U.S.C. 3318, related to rule-of-three 
hiring, but does not expressly repeat this requirement in 5 U.S.C. 
3319, related to hiring through category rating. However, the 
legislative history expresses congressional intent to apply the 240-day 
limitation to both hiring methods. See H.R. Rep. No. 114-367 (Dec. 3, 
2015); S. Rep. No. 114-143 (Sept. 15, 2015). Moreover, there is no 
logical reason to have different expiration periods for shared 
certificates depending on whether the original hiring agency chooses to 
hire by the rule-of-three method or the category rating method, and 
having two different expiration periods for shared certificates could 
lead to confusion. For this reason we are applying the same 240-day 
expiration period to shared certificates under both hiring methods.
    The original hiring agency can (1) make a selection and then share 
the certificate with one or more receiving agencies or (2) share the 
certificate with one or more receiving agencies after reviewing, and 
deciding not to hire from, its certificate of eligible applicants. OPM 
notes in this regard that when an agency announces a position, examines 
and rates applicants, and issues a certificate of eligibles, it must do 
so for its own hiring needs in the first instance. An agency may not 
generate a certificate solely for the purpose of sharing it with 
another agency. That would be misleading to applicants and contrary to 
competitive principles.
    If the original hiring agency makes a selection and shares the 
certificate, any pass-overs of preference eligibles or objections to 
other eligible candidates must be resolved by that agency before the 
certificate may be shared with another agency. The 240-day window 
cannot be extended while the pass-over of a preference eligible or 
objection request is being resolved; the law does not permit extensions 
of shared certificates.
    Once the above processes have been completed, the original hiring 
agency may share the certificate of eligibles with one or more Federal 
agencies. In order to share a certificate, the Delegated Examining Unit 
(DEU) of the original agency may transmit the certificate to a DEU of a 
receiving agency. The DEU of the original agency must audit the 
original agency's own use of the certificate in accordance with the 
procedures of the Delegated Examining Operations Handbook (DEOH) before 
the certificate is shared.
    When sharing a certificate of eligibles, the original agency must 
include all documentation pertaining to the creation of that 
certificate (e.g., the job analysis, a copy of job opportunity 
announcement, the rating schedule, job applications, etc.) and must 
safeguard (i.e., redact) any personally identifiable information not 
required by the receiving agency to use the certificate for its 
intended purpose. The original agency shares the certificate of 
eligibles in its original form, with the names of those applicants who 
have been selected and those who have chosen not to ``opt-in'' 
redacted, in order to retain the original ordering of the certificate 
subject to these appropriate deletions.
    The original agency may share a certificate in one or both of two 
ways: (1) Simultaneous sharing with multiple agencies; and (2) serial 
sharing, i.e., sharing with one agency at a time.
    Simultaneous Sharing. The original agency may share the certificate 
with one or more agencies at the same time. Each receiving agency works 
the certificate independently. All selections from shared certificates 
must be made within 240 days of the date of the issuance of the 
certificate by the original agency. Each receiving agency creates its 
own case file for audit and reconstruction purposes, documenting its 
compliance with the DEOH and all applicable regulations.
    Serial Sharing. Another option is for the original agency to share 
a certificate with just one agency at a time. Under this option, the 
original agency shares the certificate with the first receiving agency. 
The first receiving agency works the certificate and makes selections 
within 240 days of the date of issuance of the certificate by the 
original agency. After sharing the certificate with the first receiving 
agency, the original agency may share the certificate with a second 
receiving agency. The second receiving agency works the certificate and 
makes selections within 240 days of the date of issuance of the 
certificate by the original agency. Each receiving agency must create 
its own case file for audit and reconstruction purposes, documenting 
its compliance with the DEOH and all applicable regulations. This 
process may continue to additional receiving agencies as long as this 
procedure is followed and all selections are made within 240 days of 
the date of issuance of the certificate by the original agency.
    As noted above, the processes are not exclusive, i.e., an agency 
may start with simultaneous sharing and subsequently permit additional 
sharing through a serial sharing scenario.
    In the event that the original agency determines that an error was 
made on the original certificate, the original agency must notify all 
receiving agencies of the details of the error; receiving agencies are 
responsible for taking appropriate action to address any erroneous 
actions that may have occurred due to the error by the original agency.

The Internal Application Process

    Before using a shared certificate, a receiving agency must consider 
its own employees for the position under the agency's merit promotion 
procedures. This includes considering individuals

[[Page 5337]]

covered under the agency's Career Transition Assistance Program (CTAP) 
and the agency's reemployment priority list (RPL), where applicable, as 
well as other individuals for which consideration is required as part 
of the internal selection process. See 5 CFR part 330, subparts B and 
F.
    The Competitive Service Act provides for notice to a receiving 
agency's own employees, an internal application period of no more than 
10 days, and consideration of the internal applicants before a 
selection can be made from this shared certificate. The law does not 
permit an extension of this internal application period beyond 10 days.
    The law also specifies that the internal application process is 
subject to applicable collective bargaining obligations (to the extent 
consistent with law). However, the Competitive Service Act does not 
affect the provision of the Federal Service Labor-Management Relations 
Statute under which management has the right to fill a position either 
from among properly ranked and certified candidates for promotion or 
from any other appropriate source, such as a competitive certificate. 
See 5 U.S.C. 7106(a)(2)(C); 5 CFR 330.102, 335.103(b)(4).
    If a receiving agency makes a selection from among its own 
employees (i.e., under merit promotion procedures) the process ends 
with respect to that agency. But if the agency wishes to make a 
selection from the shared certificate (after first considering its own 
employees), it must first provide selection priority, where applicable, 
to individuals eligible under the Interagency Career Transition 
Assistance Program (ICTAP) who applied to the original job 
announcement. See 5 CFR part 330, subpart G. The agency is not required 
to re-advertise the position for ICTAP eligibles because the original 
agency has already afforded an opportunity for ICTAP eligibles to apply 
and be considered. This allows the agency to use a ready-made 
certificate of eligibles while still adhering to the provisions of part 
330, subpart G.
    If there are no ICTAP eligibles, a receiving agency can make a 
selection from the shared certificate in accordance with veterans' 
preference rules and the provisions governing selections under 
competitive examining procedures. A receiving agency may not reassess 
the applicants for purposes of rating/ranking. A receiving agency may 
seek to pass over a preference eligible, and would follow the usual 
rules for doing so when filling positions under competitive examining 
procedures.

Authorized Appointment Types

    OPM is proposing to limit use of shared certificates to delegated 
examining for permanent and term appointments. We are excluding 
temporary appointments, i.e., those not to exceed one year, from these 
provisions because of the requirement that a receiving agency must 
first consider individuals from within its own workforce prior to 
making a selection from a shared certificate. We believe it would be 
inefficient to undergo this process for appointments of a very short 
duration.
    Positions may be full-time or other than full-time (i.e., part-
time, seasonal, on-call, and intermittent). As noted above, the 
original hiring agency must complete all of its actions on the 
certificate before it may be shared. As also was previously observed, 
the original hiring agency does not have to make a selection in order 
for the certificate to be shared. The original agency may share the 
certificate with one or more agencies.

Requirement for Appointment at a ``Similar Grade Level''

    A receiving hiring agency may select an individual from a shared 
certificate only for a position of the same occupational series, grade 
level, and duty location as the position advertised by the original 
hiring agency. The Act states that the shared certificate may also be 
used to select for a ``similar grade level'' to that for which the 
original hiring agency issued its certificate. OPM interprets the term 
``similar grade level'' in this context to mean a corresponding rate or 
level of pay under an alternative pay system for a position excluded 
from the General Schedule. We do not interpret the term ``similar grade 
level'' to mean a higher or lower General Schedule grade than that for 
which the original hiring agency issued its certificate. It would not 
be efficient for an agency to use a certificate for higher-graded 
positions to select for lower-graded positions, and it would violate 
competitive principles to use a certificate for lower-graded positions 
to select for higher-graded positions (as different applicants would 
have competed if they had been aware that the vacancy could be filled 
at a higher level than advertised). For the same reasons OPM is not 
permitting the use of shared certificates to fill vacancies for 
positions with higher full performance levels.

Qualification Requirements

    A receiving agency must verify through its job analysis that the 
minimum qualification requirements (including use of any selective 
placement factors) and competencies--or knowledge, skills, and 
abilities (KSAs)--assessed for the original position are appropriate 
for the position to be filled. This verification is necessary to 
establish the job-relatedness and relevance of the assessment method 
used, consistent with 5 CFR part 300, subpart A.

Time Limit for Applicant Selection

    A receiving agency may make its selection from a shared certificate 
within the 240-day period beginning on the date the original hiring 
agency issued the certificate of eligibles (not on the date on which 
the original hiring agency provided the certificate to the receiving 
agency).

Public Notice by the Original Hiring Agency

    The original hiring agency must provide public notice via a job 
opportunity announcement posted on www.USAJOBS.gov for the position 
being filled, in accordance with public notice requirements for filling 
jobs under the competitive examining process. The original announcement 
must indicate that the resulting list of eligible candidates may be 
shared with one or more other hiring agencies. Therefore, we are 
amending 5 CFR part 330 to require that if an agency is sharing a 
certificate of eligibles under part 332, the original hiring agency 
must provide notice in the job opportunity announcement that the 
resulting list of eligible candidates may be used by one or more other 
hiring agencies. The original hiring agency must provide an opportunity 
for applicants to ``opt-in'' to have their applications and other 
personal information shared with one or more other hiring agencies 
under these provisions. This allows the applicant to furnish advance 
written consent for disclosure of the information under the Privacy 
Act. See 5 U.S.C. 552a(b).
    The original hiring agency may not share a certificate containing 
the name and personal information of an applicant unless that applicant 
has chosen to ``opt-in'' for these purposes. If an applicant chooses 
not to ``opt-in,'' his/her application materials will not be shared and 
the applicant will receive no further consideration when a certificate 
of eligibles is shared with one or more hiring agencies. His or her 
name will be redacted on the shared certificate.

The Receiving Agency's Notice to Internal Applicants

    Before making a selection from a shared certificate, a receiving 
agency

[[Page 5338]]

must notify its employees of the opportunity to apply and be considered 
before a selection can be made from the shared certificate and of a 
period of up to 10 days to apply consistent with the provisions of part 
335. If the agency has RPL eligibles or CTAP eligibles, the notice must 
provide information about their priority.

The Receiving Agency's Notice to Shared Certificate Applicants

    Before using a shared certificate, a receiving agency must notify 
the list of candidates of its receipt of their names and application 
materials and its intention of considering them for a position. A 
receiving agency must also inform these individuals of its obligation 
to consider applicants from within its own workforce who apply during 
the required internal application period and any other individuals the 
agency is required to consider (e.g., individuals eligible for 
consideration under the CTAP or from the RPL). The notification must 
include the agency, position title, series, grade level (or 
equivalent), and duty location.

The Receiving Agency's Selection Process

    Before using a shared certificate, a receiving agency must consider 
its own employees for the position that the original hiring agency 
advertised. The receiving agency must consider individuals covered 
under the agency's RPL or CTAP where applicable. At this point, a 
receiving agency either makes a selection from among its own employees 
under merit promotion procedures, or it may consider applicants from 
the certificate of eligibles shared by the original hiring agency.
    If, after considering its own employees, a receiving agency wishes 
to make a selection from the shared certificate, it must first provide 
selection priority to any external applicants who applied to the 
original job announcement who are ICTAP eligible. If there are no ICTAP 
eligibles who met the well-qualified definition, a receiving agency can 
make a selection from the shared certificate in accordance with 
veterans' preference rules and the provisions governing selections 
under competitive examining procedures. Upon completion of the process, 
a receiving agency must audit the certificate.

Objections/Pass Overs

    Objections to a non-preference eligible applicant and requests to 
pass over an individual entitled to veterans' preference must be 
adjudicated on a case-by-case basis. Each case must be reviewed on its 
own merits. Therefore, adjudications by the original hiring agency (or 
the Office of Personnel Management in the case of a 30 percent or more 
disabled veteran) sustaining objections or granting requests to pass 
over do not extend to the receiving agency if a certificate is shared. 
A receiving agency may object to an applicant or request to pass over 
an individual entitled to veterans' preference on a shared certificate 
in accordance with the procedures outlined in the DEOH and the 
provisions of part 332.
    Likewise, if using numerical rating, the consideration of an 
applicant by the original hiring agency does not count as a 
consideration of the applicant by a receiving agency for purposes of 
the three-consideration rule, 5 CFR 332.405. The three-consideration 
rule does not apply when using category rating.

Documentation

    When sharing a certificate of eligibles, the original hiring agency 
must share all documentation pertaining to the creation of that 
certificate, including but not limited to the job analysis, testing and 
examination materials, the job opportunity announcement, and 
applications, as relevant. The original agency must safeguard any 
personally identifiable information not needed for effective use of the 
certificate by the receiving agency.
    The original hiring agency and any receiving agency using a shared 
certificate must each maintain case file documentation for that 
agency's selection or selections sufficient for each agency that used 
the certificate to make a selection to reconstruct its own hiring 
actions later, if necessary. Each time a certificate is shared, each 
receiving agency is responsible for creating a new instance of a case 
file to document its use.
    In the event that the original agency determines that an error was 
made on the original certificate, the original agency must notify all 
receiving agencies of the details of the error. The original hiring 
agency must make available, to any receiving agency that needs it, all 
relevant case file documents concerning the selection or selections 
made by the original agency, as necessary, to make full reconstruction 
possible. Each receiving agency would be responsible for taking 
appropriate action to address any erroneous actions that it took due to 
the error by the original agency.
    Each agency is responsible for the proper selection, audit, 
recordkeeping, etc., of delegated examining activities. All actions 
taken on competitive certificates must be documented in accordance with 
the DEOH and all applicable regulations.

Request for Comments

    OPM welcomes recommendations on rule changes to improve the 
administration of the Competitive Service Act of 2015 and on 
implementation guidance.

Technical Amendment

    OPM is also amending Sec.  337.304 to reflect the Act's renumbering 
of 5 U.S.C. 3319.

Waiver of Notice of Proposed Rulemaking

    Section 2(d) of Public Law 114-137, the Competitive Service Act of 
2015, directs the rulemaking procedure to be followed for this rule. It 
states that ``the Director of the Office of Personnel Management shall 
issue an interim final rule with comment to carry out the amendments 
made by this section.'' Therefore the general notice of proposed 
rulemaking typically required for rulemaking under 5 U.S.C. 553(b) is 
statutorily waived for this rule.

E.O. 13563 and E.O. 12866, Regulatory Review

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

Regulatory Flexibility Act

    I certify that this regulation would not have a significant 
economic impact on a substantial number of small entities because it 
affects only Federal employees.

E.O. 13132, 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.

E.O. 12988, 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

[[Page 5339]]

annually. Thus, no written assessment of unfunded mandates is required.

Congressional Review Act

    This action pertains to agency management, personnel and 
organization and does not substantially affect the rights or 
obligations of non-agency parties and, accordingly, is not a ``rule'' 
as that term is used by the Congressional Review Act (Subtitle E of the 
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)). 
Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.

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

5 CFR Part 330

    Armed forces reserves, District of Columbia, Government employees.

5 CFR Part 332

    Government employees.

5 CFR Part 337

    Government employees.

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

    Accordingly, OPM is amending parts 330, 332, and 337 of title 5, 
Code of Federal Regulations, as follows:

PART 330--RECRUITMENT, SELECTION, AND PLACEMENT (GENERAL)

0
1. The authority citation for part 330 is revised to read as follows:

    Authority: 5 U.S.C. 1104, 1302, 3301, 3302, 3304, and 3330; E.O. 
10577, 3 CFR, 1954-58 Comp., p. 218; Section 330.103 also issued 
under 5 U.S.C. 3327; Section 330.104 also issued under sec. 2(d), 
Pub. L. 114-137, 130 Stat. 310; Subpart B also issued under 5 U.S.C. 
3315 and 8151; Section 330.401 also issued under 5 U.S.C. 3310; 
Subparts F and G also issued under Presidential Memorandum on Career 
Transition Assistance for Federal Employees, September 12, 1995; 
Subpart G also issued under 5 U.S.C. 8337(h) and 8456(b).


0
2. Add Sec.  330.104(c) to read as follows:


Sec.  330.104  Requirements for vacancy announcements.

* * * * *
    (c) If an agency is sharing a certificate of eligibles under part 
332 of this chapter, the original hiring agency must provide notice in 
the job opportunity announcement that the resulting list of eligible 
candidates may be used by one or more hiring agencies, and of how the 
applicant may opt-in to the disclosure of his or her applicant records 
to other hiring agencies.

PART 332--RECRUITMENT AND SELECTION THROUGH COMPETITIVE EXAMINATION

0
3. The authority citation for part 332 is revised to read as follows:

    Authority: 5 U.S.C. 1103, 1104, 1302, 2108, 3301, 3302, 3304, 
3312, 3317, 3318, 3319; sec. 2(d), Pub. L. 114-137, 130 Stat. 310; 
E.O. 10577, 19 FR 7521, 3 CFR, 1954-1958 Comp., p. 218.


0
4. Add Sec.  332.408 to read as follows:


Sec.  332.408  Shared use of a competitive certificate.

    (a) General authority. (1) A hiring agency may share a competitive 
service certificate issued under its delegated examining authority with 
one or more hiring agencies for a position(s) to be filled on a 
permanent or term basis. Positions filled on a term basis are subject 
to the provisions of 5 CFR part 316, subpart C. Positions may be full-
time or other than full-time (i.e., part-time, seasonal, on-call, and 
intermittent).
    (2) Another Federal agency may make a selection from a certificate 
shared with it under paragraph (b) of this section only after it has 
considered individuals it is required to consider when filling 
positions from within its own workforce and other internal applicants 
under paragraph (c) of this section.
    (3) All actions taken on a shared certificate must be made within 
the 240-day period beginning on the date the original hiring agency 
issued the certificate of eligibles. This period cannot be extended.
    (4) The original hiring agency and any receiving agency using a 
shared certificate must each maintain case file documentation 
sufficient for each agency to reconstruct its own use of the 
certificate in accordance with the Delegated Examining Operations 
Handbook, and must safeguard testing and examination materials, 
examination results, and the names of applicants from disclosure to 
other persons in accordance with Sec.  300.201 of this chapter.
    (5) All actions taken on competitive certificates must be done in 
accordance with the Delegated Examining Operations Handbook and all 
applicable regulations in this part and part 337 of this chapter.
    (6) Agencies sharing certificates must keep records of the 
instances of sharing certificates and/or using shared certificates.
    (b) Requirements for the original hiring agency. (1) A hiring 
agency may share a competitive certificate it has issued under Sec.  
332.402 (for traditional rating and ranking) or under 5 CFR 337.303 
(for category rating) with one or more hiring agencies for use in 
filling a position(s) if:
    (i) The original hiring agency intends to use the certificate for 
its own hiring;
    (ii) The original hiring agency has provided notice within the job 
opportunity announcement for the original vacancy that the resulting 
list of eligible candidates may be used by one or more hiring agencies;
    (iii) The original hiring agency has provided an opportunity for 
applicants to opt-in to have their applications and other personal 
information shared with one or more hiring agencies;
    (iv) The original hiring agency's objections to eligibles or 
requests to pass over preference eligibles on the certificate under 
Sec.  332.406 or Sec.  337.304 of this chapter have been resolved by 
that agency's Delegated Examining Unit;
    (v) The original hiring agency has either made a selection from the 
certificate or has made no selection from the certificate, and has 
documented its reason for non-selection; and
    (vi) The Delegated Examining Unit of the original hiring agency has 
closed and audited the certificate in accordance with the procedures in 
the Delegated Examining Operations Handbook.
    (2) When sharing a certificate of eligibles, the original hiring 
agency must share all documentation pertaining to the creation of that 
certificate, including but not limited to the job analysis, testing and 
examination materials, the job opportunity announcement, and 
applications, as relevant, and must safeguard any personally 
identifiable information not needed for effective use of the 
certificate by the receiving agency. The original hiring agency must 
share the certificate of eligibles in its original form in order to 
retain the original ordering of the certificate; must safeguard any 
personally identifiable information from unauthorized access during the 
transmission process; and must redact the names of applicants who did 
not opt-in to the shared certificate, and who therefore may not be 
considered by the receiving agency.
    (3) The original hiring agency may share a certificate of eligibles 
with one or more agencies.
    (4) If the original hiring agency determines that it has made an 
error that may affect selections by a receiving

[[Page 5340]]

agency or agencies, it must notify each affected receiving agency.
    (c) Requirements for the receiving agency--(1) Vacancies that may 
be filled. A receiving agency may use a shared certificate to fill a 
vacancy in the same occupational series, at the same grade level (or a 
corresponding rate or level of pay for a position excluded from the 
General Schedule), with the same full performance level, and in the 
same duty location as was listed on the original hiring agency's 
certificate. If the original hiring agency's certificate is for an 
interdisciplinary position as described in the Delegated Examining 
Operations Handbook, the receiving agency may use it to fill an 
interdisciplinary position. The receiving agency must verify through 
its job analysis that the minimum qualification requirements (including 
use of any selective placement factors) and the competencies, or 
knowledge, skills, and abilities, that were used for the original 
position are appropriate for the position to be filled.
    (2) Notification to individuals who applied to the original 
vacancy. Before using a shared certificate, a receiving agency must 
notify the list of candidates of its receipt of their names and 
application materials and its intention of considering them for a 
position. The receiving agency must also inform these individuals of 
its requirement to consider its own employees as well as other 
individuals the agency is required to consider before consideration of 
anyone on the shared certificate. At a minimum, the notification must 
include the agency, position title, series, grade level or equivalent, 
and duty location.
    (3) Consideration of internal candidates. Before making a selection 
from a shared certificate, a receiving agency must provide notice of 
its intent to fill the available position(s) to its own employees and 
other individuals the agency is required to consider, to provide these 
internal candidates the opportunity to apply consistent with the 
provisions of part 335 of this chapter, and to review the 
qualifications of the internal candidates.
    (i) This notice and opportunity for internal candidates to apply is 
subject to applicable collective bargaining obligations (to the extent 
consistent with law). Nothing in this paragraph affects agencies' right 
to fill a position from any appropriate source under Sec. Sec.  330.102 
and 335.103 of this chapter.
    (ii) Agencies are prohibited from providing an application period 
any longer than 10 days for internal candidates. This time limit cannot 
be waived or extended.
    (iii) Before considering other candidates, a receiving agency must 
first provide for the consideration for selection required for 
individuals covered under its Career Transition Assistance Program and 
its Reemployment Priority List under part 330, subparts B and F, of 
this chapter.
    (4) Selection from the shared certificate. After considering 
internal candidates, a receiving agency may consider candidates 
referred on the shared certificate.
    (i) The receiving agency must consider candidates on a shared 
certificate independently of the actions of any other agency with which 
the certificate is simultaneously shared under paragraph (b)(3) of this 
section.
    (ii) The receiving agency may not reassess the applicants for 
purposes of rating/ranking.
    (iii) The receiving agency must provide selection priority to 
individuals eligible under the Interagency Career Transition Assistance 
Program under part 330, subpart G, of this chapter who applied to the 
original job announcement.
    (5) Time limit on selection from a shared certificate. The 
receiving agency has 240 days from the date the certificate was issued 
(in the original hiring agency) to select individuals from the shared 
certificate.
    (6) Limit on further sharing by the receiving agency. The receiving 
agency may not share or distribute the shared certificate to another 
Federal agency.

PART 337--EXAMINING SYSTEM

0
5. The authority citation for part 337 is revised to read as follows:

    Authority: 5 U.S.C. 1104(a)(2), 1302, 2302, 3301, 3302, 3304, 
3319, 5364; 116 Stat. 2290, sec. 1413, Pub. L. 108-136, 117 Stat. 
1392, as amended by sec. 853 of Pub. L. 110-181, 122 Stat. 3; sec. 
2(d), Pub. L. 114-137, 130 Stat. 310; E.O. 10577, 19 FR 7521, 3 CFR, 
1954-1958 Comp., p. 218.


0
6. Revise Sec.  337.304 to read as follows:


Sec.  337.304  Veterans' preference.

    In this subpart:
    (a) Veterans' preference must be applied as prescribed in 5 U.S.C. 
3319(b) and (c)(7);
    (b) Veterans' preference points as prescribed in Sec.  337.101 are 
not applied in category rating; and
    (c) Sections 3319(b) and 3319(c)(7) of title 5 U.S.C. constitute 
veterans' preference requirements for purposes of 5 U.S.C. 
2302(b)(11)(A) and (B).

[FR Doc. 2017-00800 Filed 1-17-17; 8:45 am]
 BILLING CODE 6325-39-P

5335 Rules and Regulations Federal Register Vol. 82, No. 11 Wednesday, January 18, 2017 This section of the FEDERAL REGISTER 4430, by TTY at (202) 418–3134, or by share resumes and select from among contains regulatory documents having general email at Roseanna.Ciarlante@opm.gov. candidates who have competed for applicability and legal effect, most of which SUPPLEMENTARY INFORMATION: On March similar positions at another hiring are keyed to and codified in the Code of agency, were assessed, and were 18, 2016, the Competitive Service Act of Federal Regulations, which is published under referred by that agency. The new 50 titles pursuant to 44 U.S.C. 1510. 2015 (the ‘‘Act’’) was enacted as Public Law 114–137. The Act allows an process will benefit agencies who may The Code of Federal Regulations is sold by ‘‘appointing authority’’ to share a make selections from among the top the Superintendent of Documents. Prices of competitive certificate issued under rated applicants readily available, as new books are listed in the first FEDERAL delegated examining procedures with well as applicants who through one job REGISTER issue of each week. one or more ‘‘appointing authorities’’ to application may now be considered for make an appointment to a position that more public service opportunities in is in the same occupational series, grade their desired Federal occupation. OFFICE OF PERSONNEL level (or equivalent), and duty location The law specifies that an appointing MANAGEMENT during the 240-day period beginning on official can select an applicant for the date of issuance of the certificate of appointment from the certificate of 5 CFR Parts 330, 332, and 337 another agency provided that certain eligibles. RIN 3206–AN46 Under current rules, an appointing conditions are met. authority may share a certificate within • The hiring agency seeking to share Recruitment and Selection Through the bureaus and components of his or the certificate may share the certificate Competitive Examination her department or agency. The current with one or more hiring agencies only AGENCY: U.S. Office of Personnel practice allows an appointing authority if the announcement of the original Management. to expedite hiring when multiple position stated that the resulting vacancies for the same position exist certificate may be used by one or more ACTION: Interim rule with request for throughout his or her organization. For Federal agencies, and applicants ‘‘opt- comments. in,’’ electing to have their applications example, suppose that the Department SUMMARY: The U.S. Office of Personnel of Treasury headquarters human shared with agencies other than the Management (OPM) is issuing an resources (HQ HR) office recruits for a agency posting the job announcement. interim rule to implement the Financial Management Specialist, GS– • An agency seeking to use another Competitive Service Act of 2015 to 501–12, and hires two highly qualified agency’s certificate must provide allow an appointing authority (i.e., the individuals from the certificate of advance notice of the available position head of a Federal agency or department) eligibles. Treasury’s HQ HR office may to its own employees, give them up to to share a competitive certificate with currently share the certificate with its 10 days to apply, and review their one or more appointing authorities for components, like the Bureau of the qualifications before it can make a the purpose of making selections of Fiscal Service and the Internal Revenue selection from the certificate from the qualified candidates. The intended Service, that have identified Financial original hiring agency. effect of this rule is to facilitate the Management Specialist vacancies that It is plain from the Act that only the hiring of top talent across Federal need to be filled. This current practice original hiring agency may ‘‘share’’ a agencies. allows these different components with certificate with any other agency. But the Department to leverage the Congress did not define precisely what DATES: Interim rule effective February recruitment efforts already undertaken it means to ‘‘share’’ the certificate. One 17, 2017; comments must be received on by the Department. possible approach is that when the or before March 20, 2017. While the Act does not define original hiring agency ‘‘shares’’ the ADDRESSES: You may submit comments ‘‘appointing authority’’ for the purpose certificate with other agencies they must through the Federal eRulemaking Portal of shared certificates, its clear purpose simultaneously work the certificate in a at http://www.regulations.gov. All is to expand current practice to allow an coordinated fashion, accounting for submissions received through the Portal appointing authority to share his or her declinations, failures to respond, must include the agency name and certificates with an appointing authority selections, and so on as if they were docket number or Regulation Identifier in other departments or agencies, not integrated arms of the same employer. Number (RIN) for this proposed just within the same agency (e.g., the (This is how the process might work rulemaking. Department of Treasury will now be when a department shares a certificate You may also send, deliver, or fax able to share certificates with the among a number of its different comments to Kimberly A. Holden, Department of Energy). Consistent with components.) Another possible Deputy Associate Director for this purpose, in this interim rule, OPM approach is that each of the other Recruitment and Hiring, Employee refers to the ‘‘original hiring agency’’ agencies may work the certificate Services, U.S. Office of Personnel and the ‘‘receiving agency’’ with respect independently, as if the certificates had mstockstill on DSK3G9T082PROD with RULES Management, Room 6500 AI, 1900 E to shared certificates, rather than using been referred from the top of a register Street NW., Washington, DC 20415– the more generic term ‘‘appointing or inventory. Neither of these 9700; email at employ@opm.gov or by authority.’’ approaches is compelled by the text of fax at (202) 606–4430. Congress’s purpose in enacting the the statute and as such OPM has FOR FURTHER INFORMATION CONTACT: Act was to help facilitate faster hiring determined that the most reasonable Roseanna Ciarlante by telephone on through the sharing of talent across the approach, and the one that best (267) 932–8640, by fax at (202) 606– Government by permitting agencies to effectuates Congress’s apparent purpose, VerDate Sep<11>2014 16:39 Jan 17, 2017 Jkt 241001 PO 00000 Frm 00001 Fmt 4700 Sfmt 4700 E:\FR\FM\18JAR1.SGM 18JAR1

5336 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations is the latter of the two. A shared hiring agency chooses to hire by the original ordering of the certificate certificate of eligibles may be used by a rule-of-three method or the category subject to these appropriate deletions. receiving agency independently of other rating method, and having two different The original agency may share a receiving agencies. Each receiving expiration periods for shared certificates certificate in one or both of two ways: agency is responsible for establishing a could lead to confusion. For this reason (1) Simultaneous sharing with multiple unique instance of a case file to we are applying the same 240-day agencies; and (2) serial sharing, i.e., document that agency’s use of the expiration period to shared certificates sharing with one agency at a time. certificate. This will be helpful in the under both hiring methods. Simultaneous Sharing. The original event a receiving agency must later The original hiring agency can (1) agency may share the certificate with reconstruct its hiring actions. Allowing make a selection and then share the one or more agencies at the same time. multiple agencies to use certificates certificate with one or more receiving Each receiving agency works the independently of one another also agencies or (2) share the certificate with certificate independently. All selections supports the timeliest and practical one or more receiving agencies after from shared certificates must be made implementation of these provisions and reviewing, and deciding not to hire within 240 days of the date of the minimizes the risk of error associated from, its certificate of eligible issuance of the certificate by the original with multiple agencies simultaneously applicants. OPM notes in this regard agency. Each receiving agency creates working the same certificate. that when an agency announces a its own case file for audit and However, because of the added position, examines and rates applicants, reconstruction purposes, documenting complexity of any ‘‘sharing’’ of and issues a certificate of eligibles, it its compliance with the DEOH and all certificates, the ability to track the must do so for its own hiring needs in applicable regulations. distribution of certificates to receiving Serial Sharing. Another option is for the first instance. An agency may not agencies must be a feature of these the original agency to share a certificate generate a certificate solely for the provisions. Thus, whenever the original with just one agency at a time. Under purpose of sharing it with another agency shares a certificate, it must this option, the original agency shares agency. That would be misleading to maintain a record of any agencies with the certificate with the first receiving applicants and contrary to competitive whom the certificate was shared. This is agency. The first receiving agency works principles. important in the event any errors occur the certificate and makes selections If the original hiring agency makes a which require reconstruction of all within 240 days of the date of issuance selection and shares the certificate, any hiring actions which flow from a of the certificate by the original agency. pass-overs of preference eligibles or certificate generated by the original After sharing the certificate with the objections to other eligible candidates agency. In this scenario, if an error first receiving agency, the original must be resolved by that agency before occurs at the original agency, the agency may share the certificate with a the certificate may be shared with original agency is responsible solely for second receiving agency. The second another agency. The 240-day window notifying each succeeding receiving receiving agency works the certificate cannot be extended while the pass-over agency that received a shared certificate and makes selections within 240 days of of a preference eligible or objection of the error. Any corrective actions or the date of issuance of the certificate by request is being resolved; the law does reconstructions subsequent to the the original agency. Each receiving not permit extensions of shared original agency’s would be the agency must create its own case file for certificates. responsibility of each receiving agency audit and reconstruction purposes, that made a selection. Once the above processes have been documenting its compliance with the completed, the original hiring agency DEOH and all applicable regulations. How It Will Work may share the certificate of eligibles This process may continue to additional The original hiring agency (i.e., the with one or more Federal agencies. In receiving agencies as long as this agency sharing the certificate) must order to share a certificate, the procedure is followed and all selections issue a certificate in accordance with Delegated Examining Unit (DEU) of the are made within 240 days of the date of competitive examining procedures for a original agency may transmit the issuance of the certificate by the original position it is seeking to fill. This certificate to a DEU of a receiving agency. includes public notice, rating and agency. The DEU of the original agency As noted above, the processes are not ranking, the application of veterans’ must audit the original agency’s own exclusive, i.e., an agency may start with preference, etc. The 240-day window use of the certificate in accordance with simultaneous sharing and subsequently (during which other Federal agencies the procedures of the Delegated permit additional sharing through a may use the certificate of eligibles to Examining Operations Handbook serial sharing scenario. select an individual) begins on the date (DEOH) before the certificate is shared. In the event that the original agency the certificate is issued by the original When sharing a certificate of eligibles, determines that an error was made on hiring agency. OPM notes that the the original agency must include all the original certificate, the original Competitive Service Act includes this documentation pertaining to the agency must notify all receiving 240-day window in 5 U.S.C. 3318, creation of that certificate (e.g., the job agencies of the details of the error; related to rule-of-three hiring, but does analysis, a copy of job opportunity receiving agencies are responsible for not expressly repeat this requirement in announcement, the rating schedule, job taking appropriate action to address any 5 U.S.C. 3319, related to hiring through applications, etc.) and must safeguard erroneous actions that may have category rating. However, the legislative (i.e., redact) any personally identifiable occurred due to the error by the original history expresses congressional intent to information not required by the agency. mstockstill on DSK3G9T082PROD with RULES apply the 240-day limitation to both receiving agency to use the certificate hiring methods. See H.R. Rep. No. 114– for its intended purpose. The original The Internal Application Process 367 (Dec. 3, 2015); S. Rep. No. 114–143 agency shares the certificate of eligibles Before using a shared certificate, a (Sept. 15, 2015). Moreover, there is no in its original form, with the names of receiving agency must consider its own logical reason to have different those applicants who have been selected employees for the position under the expiration periods for shared certificates and those who have chosen not to ‘‘opt- agency’s merit promotion procedures. depending on whether the original in’’ redacted, in order to retain the This includes considering individuals VerDate Sep<11>2014 16:39 Jan 17, 2017 Jkt 241001 PO 00000 Frm 00002 Fmt 4700 Sfmt 4700 E:\FR\FM\18JAR1.SGM 18JAR1

Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations 5337 covered under the agency’s Career Authorized Appointment Types minimum qualification requirements Transition Assistance Program (CTAP) OPM is proposing to limit use of (including use of any selective and the agency’s reemployment priority shared certificates to delegated placement factors) and competencies— list (RPL), where applicable, as well as examining for permanent and term or knowledge, skills, and abilities other individuals for which appointments. We are excluding (KSAs)—assessed for the original consideration is required as part of the position are appropriate for the position temporary appointments, i.e., those not internal selection process. See 5 CFR to be filled. This verification is to exceed one year, from these part 330, subparts B and F. necessary to establish the job- provisions because of the requirement The Competitive Service Act provides relatedness and relevance of the for notice to a receiving agency’s own that a receiving agency must first assessment method used, consistent employees, an internal application consider individuals from within its with 5 CFR part 300, subpart A. period of no more than 10 days, and own workforce prior to making a consideration of the internal applicants selection from a shared certificate. We Time Limit for Applicant Selection before a selection can be made from this believe it would be inefficient to A receiving agency may make its shared certificate. The law does not undergo this process for appointments selection from a shared certificate permit an extension of this internal of a very short duration. within the 240-day period beginning on application period beyond 10 days. Positions may be full-time or other the date the original hiring agency The law also specifies that the than full-time (i.e., part-time, seasonal, issued the certificate of eligibles (not on internal application process is subject to on-call, and intermittent). As noted the date on which the original hiring applicable collective bargaining above, the original hiring agency must agency provided the certificate to the obligations (to the extent consistent complete all of its actions on the receiving agency). with law). However, the Competitive certificate before it may be shared. As also was previously observed, the Public Notice by the Original Hiring Service Act does not affect the provision original hiring agency does not have to Agency of the Federal Service Labor- Management Relations Statute under make a selection in order for the The original hiring agency must which management has the right to fill certificate to be shared. The original provide public notice via a job a position either from among properly agency may share the certificate with opportunity announcement posted on ranked and certified candidates for one or more agencies. www.USAJOBS.gov for the position promotion or from any other Requirement for Appointment at a being filled, in accordance with public appropriate source, such as a ‘‘Similar Grade Level’’ notice requirements for filling jobs competitive certificate. See 5 U.S.C. under the competitive examining 7106(a)(2)(C); 5 CFR 330.102, A receiving hiring agency may select process. The original announcement 335.103(b)(4). an individual from a shared certificate must indicate that the resulting list of If a receiving agency makes a only for a position of the same eligible candidates may be shared with selection from among its own occupational series, grade level, and one or more other hiring agencies. employees (i.e., under merit promotion duty location as the position advertised Therefore, we are amending 5 CFR part procedures) the process ends with by the original hiring agency. The Act 330 to require that if an agency is respect to that agency. But if the agency states that the shared certificate may sharing a certificate of eligibles under wishes to make a selection from the also be used to select for a ‘‘similar part 332, the original hiring agency must shared certificate (after first considering grade level’’ to that for which the provide notice in the job opportunity its own employees), it must first provide original hiring agency issued its announcement that the resulting list of selection priority, where applicable, to certificate. OPM interprets the term eligible candidates may be used by one individuals eligible under the ‘‘similar grade level’’ in this context to or more other hiring agencies. The Interagency Career Transition mean a corresponding rate or level of original hiring agency must provide an Assistance Program (ICTAP) who pay under an alternative pay system for opportunity for applicants to ‘‘opt-in’’ to applied to the original job a position excluded from the General have their applications and other announcement. See 5 CFR part 330, Schedule. We do not interpret the term personal information shared with one or subpart G. The agency is not required to ‘‘similar grade level’’ to mean a higher more other hiring agencies under these re-advertise the position for ICTAP or lower General Schedule grade than provisions. This allows the applicant to eligibles because the original agency has that for which the original hiring agency furnish advance written consent for already afforded an opportunity for issued its certificate. It would not be disclosure of the information under the ICTAP eligibles to apply and be efficient for an agency to use a Privacy Act. See 5 U.S.C. 552a(b). considered. This allows the agency to certificate for higher-graded positions to The original hiring agency may not use a ready-made certificate of eligibles select for lower-graded positions, and it share a certificate containing the name while still adhering to the provisions of would violate competitive principles to and personal information of an part 330, subpart G. use a certificate for lower-graded applicant unless that applicant has If there are no ICTAP eligibles, a positions to select for higher-graded chosen to ‘‘opt-in’’ for these purposes. If receiving agency can make a selection positions (as different applicants would an applicant chooses not to ‘‘opt-in,’’ from the shared certificate in have competed if they had been aware his/her application materials will not be accordance with veterans’ preference that the vacancy could be filled at a shared and the applicant will receive no rules and the provisions governing higher level than advertised). For the further consideration when a certificate selections under competitive examining same reasons OPM is not permitting the of eligibles is shared with one or more mstockstill on DSK3G9T082PROD with RULES procedures. A receiving agency may not use of shared certificates to fill hiring agencies. His or her name will be reassess the applicants for purposes of vacancies for positions with higher full redacted on the shared certificate. rating/ranking. A receiving agency may performance levels. seek to pass over a preference eligible, The Receiving Agency’s Notice to and would follow the usual rules for Qualification Requirements Internal Applicants doing so when filling positions under A receiving agency must verify Before making a selection from a competitive examining procedures. through its job analysis that the shared certificate, a receiving agency VerDate Sep<11>2014 16:39 Jan 17, 2017 Jkt 241001 PO 00000 Frm 00003 Fmt 4700 Sfmt 4700 E:\FR\FM\18JAR1.SGM 18JAR1

5338 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations must notify its employees of the case-by-case basis. Each case must be All actions taken on competitive opportunity to apply and be considered reviewed on its own merits. Therefore, certificates must be documented in before a selection can be made from the adjudications by the original hiring accordance with the DEOH and all shared certificate and of a period of up agency (or the Office of Personnel applicable regulations. to 10 days to apply consistent with the Management in the case of a 30 percent Request for Comments provisions of part 335. If the agency has or more disabled veteran) sustaining RPL eligibles or CTAP eligibles, the objections or granting requests to pass OPM welcomes recommendations on notice must provide information about over do not extend to the receiving rule changes to improve the their priority. agency if a certificate is shared. A administration of the Competitive receiving agency may object to an Service Act of 2015 and on The Receiving Agency’s Notice to applicant or request to pass over an implementation guidance. Shared Certificate Applicants individual entitled to veterans’ Before using a shared certificate, a Technical Amendment preference on a shared certificate in receiving agency must notify the list of accordance with the procedures OPM is also amending § 337.304 to candidates of its receipt of their names outlined in the DEOH and the reflect the Act’s renumbering of 5 U.S.C. and application materials and its provisions of part 332. 3319. intention of considering them for a Likewise, if using numerical rating, position. A receiving agency must also Waiver of Notice of Proposed the consideration of an applicant by the inform these individuals of its Rulemaking original hiring agency does not count as obligation to consider applicants from a consideration of the applicant by a Section 2(d) of Public Law 114–137, within its own workforce who apply receiving agency for purposes of the the Competitive Service Act of 2015, during the required internal application three-consideration rule, 5 CFR 332.405. directs the rulemaking procedure to be period and any other individuals the The three-consideration rule does not followed for this rule. It states that ‘‘the agency is required to consider (e.g., apply when using category rating. Director of the Office of Personnel individuals eligible for consideration Management shall issue an interim final Documentation under the CTAP or from the RPL). The rule with comment to carry out the notification must include the agency, When sharing a certificate of eligibles, amendments made by this section.’’ position title, series, grade level (or the original hiring agency must share all Therefore the general notice of proposed equivalent), and duty location. documentation pertaining to the rulemaking typically required for creation of that certificate, including but rulemaking under 5 U.S.C. 553(b) is The Receiving Agency’s Selection not limited to the job analysis, testing statutorily waived for this rule. Process and examination materials, the job Before using a shared certificate, a opportunity announcement, and E.O. 13563 and E.O. 12866, Regulatory receiving agency must consider its own applications, as relevant. The original Review employees for the position that the agency must safeguard any personally This rule has been reviewed by the original hiring agency advertised. The identifiable information not needed for Office of Management and Budget in receiving agency must consider effective use of the certificate by the accordance with Executive Order 12866. individuals covered under the agency’s receiving agency. RPL or CTAP where applicable. At this The original hiring agency and any Regulatory Flexibility Act point, a receiving agency either makes a receiving agency using a shared I certify that this regulation would not selection from among its own certificate must each maintain case file have a significant economic impact on employees under merit promotion documentation for that agency’s a substantial number of small entities procedures, or it may consider selection or selections sufficient for because it affects only Federal applicants from the certificate of each agency that used the certificate to employees. eligibles shared by the original hiring make a selection to reconstruct its own hiring actions later, if necessary. Each E.O. 13132, Federalism agency. If, after considering its own time a certificate is shared, each This regulation will not have employees, a receiving agency wishes to receiving agency is responsible for substantial direct effects on the States, make a selection from the shared creating a new instance of a case file to on the relationship between the certificate, it must first provide selection document its use. National Government and the States, or priority to any external applicants who In the event that the original agency on distribution of power and applied to the original job determines that an error was made on responsibilities among the various announcement who are ICTAP eligible. the original certificate, the original levels of government. Therefore, in If there are no ICTAP eligibles who met agency must notify all receiving accordance with Executive Order 13132, the well-qualified definition, a receiving agencies of the details of the error. The it is determined that this rule does not agency can make a selection from the original hiring agency must make have sufficient federalism implications shared certificate in accordance with available, to any receiving agency that to warrant preparation of a Federalism veterans’ preference rules and the needs it, all relevant case file documents Assessment. provisions governing selections under concerning the selection or selections made by the original agency, as E.O. 12988, Civil Justice Reform competitive examining procedures. Upon completion of the process, a necessary, to make full reconstruction This regulation meets the applicable receiving agency must audit the possible. Each receiving agency would standard set forth in section 3(a) and mstockstill on DSK3G9T082PROD with RULES certificate. be responsible for taking appropriate (b)(2) of Executive Order 12988. action to address any erroneous actions Objections/Pass Overs Unfunded Mandates Reform Act of that it took due to the error by the Objections to a non-preference 1995 original agency. eligible applicant and requests to pass Each agency is responsible for the This rule will not result in the over an individual entitled to veterans’ proper selection, audit, recordkeeping, expenditure by State, local or tribal preference must be adjudicated on a etc., of delegated examining activities. governments of more than $100 million VerDate Sep<11>2014 16:39 Jan 17, 2017 Jkt 241001 PO 00000 Frm 00004 Fmt 4700 Sfmt 4700 E:\FR\FM\18JAR1.SGM 18JAR1

Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations 5339 annually. Thus, no written assessment announcement that the resulting list of certificates and/or using shared of unfunded mandates is required. eligible candidates may be used by one certificates. or more hiring agencies, and of how the (b) Requirements for the original Congressional Review Act hiring agency. (1) A hiring agency may applicant may opt-in to the disclosure of This action pertains to agency his or her applicant records to other share a competitive certificate it has management, personnel and hiring agencies. issued under § 332.402 (for traditional organization and does not substantially rating and ranking) or under 5 CFR affect the rights or obligations of non- PART 332—RECRUITMENT AND 337.303 (for category rating) with one or agency parties and, accordingly, is not SELECTION THROUGH COMPETITIVE more hiring agencies for use in filling a a ‘‘rule’’ as that term is used by the EXAMINATION position(s) if: Congressional Review Act (Subtitle E of (i) The original hiring agency intends the Small Business Regulatory ■ 3. The authority citation for part 332 to use the certificate for its own hiring; Enforcement Fairness Act of 1996 is revised to read as follows: (ii) The original hiring agency has (SBREFA)). Therefore, the reporting Authority: 5 U.S.C. 1103, 1104, 1302, 2108, provided notice within the job requirement of 5 U.S.C. 801 does not 3301, 3302, 3304, 3312, 3317, 3318, 3319; opportunity announcement for the apply. sec. 2(d), Pub. L. 114–137, 130 Stat. 310; E.O. original vacancy that the resulting list of 10577, 19 FR 7521, 3 CFR, 1954–1958 Comp., eligible candidates may be used by one Paperwork Reduction Act of 1995 (44 p. 218. or more hiring agencies; U.S.C. Chapter 35) (iii) The original hiring agency has ■ 4. Add § 332.408 to read as follows: This final regulatory action will not provided an opportunity for applicants impose any additional reporting or § 332.408 Shared use of a competitive to opt-in to have their applications and recordkeeping requirements under the certificate. other personal information shared with Paperwork Reduction Act. (a) General authority. (1) A hiring one or more hiring agencies; agency may share a competitive service (iv) The original hiring agency’s List of Subjects certificate issued under its delegated objections to eligibles or requests to pass 5 CFR Part 330 examining authority with one or more over preference eligibles on the hiring agencies for a position(s) to be certificate under § 332.406 or § 337.304 Armed forces reserves, District of filled on a permanent or term basis. of this chapter have been resolved by Columbia, Government employees. Positions filled on a term basis are that agency’s Delegated Examining Unit; 5 CFR Part 332 subject to the provisions of 5 CFR part (v) The original hiring agency has 316, subpart C. Positions may be full- either made a selection from the Government employees. time or other than full-time (i.e., part- certificate or has made no selection from 5 CFR Part 337 time, seasonal, on-call, and the certificate, and has documented its Government employees. intermittent). reason for non-selection; and (2) Another Federal agency may make (vi) The Delegated Examining Unit of U.S. Office of Personnel Management. a selection from a certificate shared with the original hiring agency has closed Beth F. Cobert, it under paragraph (b) of this section and audited the certificate in Acting Director. only after it has considered individuals accordance with the procedures in the Accordingly, OPM is amending parts it is required to consider when filling Delegated Examining Operations 330, 332, and 337 of title 5, Code of positions from within its own workforce Handbook. Federal Regulations, as follows: and other internal applicants under (2) When sharing a certificate of paragraph (c) of this section. eligibles, the original hiring agency PART 330—RECRUITMENT, (3) All actions taken on a shared must share all documentation pertaining SELECTION, AND PLACEMENT certificate must be made within the 240- to the creation of that certificate, (GENERAL) day period beginning on the date the including but not limited to the job original hiring agency issued the analysis, testing and examination ■ 1. The authority citation for part 330 certificate of eligibles. This period materials, the job opportunity is revised to read as follows: cannot be extended. announcement, and applications, as Authority: 5 U.S.C. 1104, 1302, 3301, 3302, (4) The original hiring agency and any relevant, and must safeguard any 3304, and 3330; E.O. 10577, 3 CFR, 1954–58 receiving agency using a shared personally identifiable information not Comp., p. 218; Section 330.103 also issued certificate must each maintain case file needed for effective use of the certificate under 5 U.S.C. 3327; Section 330.104 also documentation sufficient for each by the receiving agency. The original issued under sec. 2(d), Pub. L. 114–137, 130 agency to reconstruct its own use of the hiring agency must share the certificate Stat. 310; Subpart B also issued under 5 certificate in accordance with the of eligibles in its original form in order U.S.C. 3315 and 8151; Section 330.401 also issued under 5 U.S.C. 3310; Subparts F and Delegated Examining Operations to retain the original ordering of the G also issued under Presidential Handbook, and must safeguard testing certificate; must safeguard any Memorandum on Career Transition and examination materials, examination personally identifiable information from Assistance for Federal Employees, September results, and the names of applicants unauthorized access during the 12, 1995; Subpart G also issued under 5 from disclosure to other persons in transmission process; and must redact U.S.C. 8337(h) and 8456(b). accordance with § 300.201 of this the names of applicants who did not ■ 2. Add § 330.104(c) to read as follows: chapter. opt-in to the shared certificate, and who (5) All actions taken on competitive therefore may not be considered by the mstockstill on DSK3G9T082PROD with RULES § 330.104 Requirements for vacancy certificates must be done in accordance receiving agency. announcements. with the Delegated Examining (3) The original hiring agency may * * * * * Operations Handbook and all applicable share a certificate of eligibles with one (c) If an agency is sharing a certificate regulations in this part and part 337 of or more agencies. of eligibles under part 332 of this this chapter. (4) If the original hiring agency chapter, the original hiring agency must (6) Agencies sharing certificates must determines that it has made an error that provide notice in the job opportunity keep records of the instances of sharing may affect selections by a receiving VerDate Sep<11>2014 16:39 Jan 17, 2017 Jkt 241001 PO 00000 Frm 00005 Fmt 4700 Sfmt 4700 E:\FR\FM\18JAR1.SGM 18JAR1

5340 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations agency or agencies, it must notify each (iii) Before considering other OFFICE OF PERSONNEL affected receiving agency. candidates, a receiving agency must first MANAGEMENT (c) Requirements for the receiving provide for the consideration for agency—(1) Vacancies that may be selection required for individuals 5 CFR Part 339 filled. A receiving agency may use a covered under its Career Transition shared certificate to fill a vacancy in the Assistance Program and its RIN 3206–AL14 same occupational series, at the same Reemployment Priority List under part grade level (or a corresponding rate or 330, subparts B and F, of this chapter. Medical Qualification Determinations level of pay for a position excluded from (4) Selection from the shared the General Schedule), with the same certificate. After considering internal AGENCY:U.S. Office of Personnel full performance level, and in the same candidates, a receiving agency may Management. duty location as was listed on the consider candidates referred on the ACTION: Final rule. original hiring agency’s certificate. If the shared certificate. original hiring agency’s certificate is for (i) The receiving agency must SUMMARY: The U.S. Office of Personnel an interdisciplinary position as consider candidates on a shared Management (OPM) is issuing a final described in the Delegated Examining certificate independently of the actions rule to revise its regulations for medical Operations Handbook, the receiving of any other agency with which the qualification determinations. The agency may use it to fill an certificate is simultaneously shared revised regulations update references interdisciplinary position. The receiving under paragraph (b)(3) of this section. and language; add and modify agency must verify through its job (ii) The receiving agency may not definitions; clarify coverage and analysis that the minimum qualification reassess the applicants for purposes of applicability; address the need for requirements (including use of any rating/ranking. medical documentation and medical selective placement factors) and the (iii) The receiving agency must examination and/or testing for an competencies, or knowledge, skills, and provide selection priority to individuals applicant or employee whose position abilities, that were used for the original eligible under the Interagency Career may or may not have medical standards position are appropriate for the position Transition Assistance Program under and/or physical requirements; and to be filled. part 330, subpart G, of this chapter who recommend the establishment of agency (2) Notification to individuals who applied to the original job medical review boards. The final rule applied to the original vacancy. Before announcement. provides agencies guidance regarding using a shared certificate, a receiving medical evaluation procedures. (5) Time limit on selection from a agency must notify the list of candidates shared certificate. The receiving agency DATES: This rule is effective February of its receipt of their names and has 240 days from the date the 17, 2017. application materials and its intention certificate was issued (in the original of considering them for a position. The FOR FURTHER INFORMATION CONTACT: hiring agency) to select individuals from receiving agency must also inform these Monica Butler, by telephone at (202) the shared certificate. individuals of its requirement to 606–4209; by email at employ@opm.gov; consider its own employees as well as (6) Limit on further sharing by the receiving agency. The receiving agency by fax at (202) 606–0864; or by TTY at other individuals the agency is required (202) 418–3134. to consider before consideration of may not share or distribute the shared anyone on the shared certificate. At a certificate to another Federal agency. SUPPLEMENTARY INFORMATION: On minimum, the notification must include December 27, 2007, OPM issued a PART 337—EXAMINING SYSTEM proposed rule at 72 FR 73282 to revise the agency, position title, series, grade level or equivalent, and duty location. regulations on medical qualification ■ 5. The authority citation for part 337 (3) Consideration of internal determinations. The public comment is revised to read as follows: candidates. Before making a selection period on the proposed rule ended from a shared certificate, a receiving Authority: 5 U.S.C. 1104(a)(2), 1302, 2302, February 25, 2008. OPM received 3301, 3302, 3304, 3319, 5364; 116 Stat. 2290, written comments from four agencies, a agency must provide notice of its intent sec. 1413, Pub. L. 108–136, 117 Stat. 1392, to fill the available position(s) to its own union, and an individual pertinent to as amended by sec. 853 of Pub. L. 110–181, employees and other individuals the 122 Stat. 3; sec. 2(d), Pub. L. 114–137, 130 the proposed rule. A discussion of the agency is required to consider, to Stat. 310; E.O. 10577, 19 FR 7521, 3 CFR, comments is provided under the provide these internal candidates the 1954–1958 Comp., p. 218. respective subpart below. opportunity to apply consistent with the The final rule also replaces the verb ■ 6. Revise § 337.304 to read as follows: provisions of part 335 of this chapter, ‘‘shall’’ with ‘‘must’’ for added clarity and to review the qualifications of the § 337.304 Veterans’ preference. and readability. Any provisions in this internal candidates. part using the verb ‘‘must’’ have the In this subpart: (i) This notice and opportunity for same meaning and effect as previous (a) Veterans’ preference must be internal candidates to apply is subject to provisions in this part using ‘‘shall.’’ applied as prescribed in 5 U.S.C. applicable collective bargaining The final rule also adds four authority 3319(b) and (c)(7); obligations (to the extent consistent citations to clarify the scope of with law). Nothing in this paragraph (b) Veterans’ preference points as applicability: (1) 5 U.S.C. 3312 affects agencies’ right to fill a position prescribed in § 337.101 are not applied Preference eligibles; physical in category rating; and mstockstill on DSK3G9T082PROD with RULES from any appropriate source under qualifications; waiver; (2) 5 U.S.C. 3318 §§ 330.102 and 335.103 of this chapter. (c) Sections 3319(b) and 3319(c)(7) of Competitive service; selection from (ii) Agencies are prohibited from title 5 U.S.C. constitute veterans’ certificates; (3) 5 U.S.C. 3320 Excepted providing an application period any preference requirements for purposes of service; government of the District of longer than 10 days for internal 5 U.S.C. 2302(b)(11)(A) and (B). Columbia; selection; and (4) 5 U.S.C. candidates. This time limit cannot be [FR Doc. 2017–00800 Filed 1–17–17; 8:45 am] 3504 Preference eligibles; retention; waived or extended. BILLING CODE 6325–39–P physical qualifications; waiver. VerDate Sep<11>2014 16:39 Jan 17, 2017 Jkt 241001 PO 00000 Frm 00006 Fmt 4700 Sfmt 4700 E:\FR\FM\18JAR1.SGM 18JAR1


Document Created: 2018-02-01 15:19:08
Document Modified: 2018-02-01 15:19:08
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionInterim rule with request for comments.
DatesInterim rule effective February 17, 2017; comments must be received on or before March 20, 2017.
ContactRoseanna Ciarlante by telephone on (267) 932-8640, by fax at (202) 606-4430, by TTY at (202) 418-3134, or by email at [email protected]
FR Citation82 FR 5335 
RIN Number3206-AN46
CFR Citation5 CFR 330
5 CFR 332
5 CFR 337
CFR AssociatedArmed Forces Reserves; District of Columbia and Government Employees
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