SUPPLEMENTARY INFORMATION:

I. Background

OPM regulations in 5 CFR part 300 establish basic requirements for Federal employment practices. Section 300.103 requires that each employment practice be based on a job analysis, that there be a rational relationship between performance in the position to be filled and the employment practice used, and that employment practices not discriminate on prohibited bases. Current § 300.103(c) also states that employee-selection procedures must meet the standards established by UGESP, where applicable.

OPM's category rating regulation at 5 CFR 337.303(b) currently requires agencies to define each quality category through job analysis conducted in accordance with UGESP at 29 CFR part 1607 and part 300 of title 5. Similar language appears in OPM's regulations regarding the rating and selection of Reemployment Priority List candidates using category rating in 5 CFR 330.213(d). OPM's Federal Equal Opportunity Recruitment Program regulation at 5 CFR 720.206 and the Appendix to that Part advise agencies that selection processes, including job qualifications, personnel procedures, and criteria, must be consistent with UGESP.

On June 9, 2026, the Department of Justice, Office of Legal Counsel (OLC), issued an opinion titled “Constitutionality of Disparate-Impact Liability Under Title VII.” ^[1] OLC concluded that existing EEOC interpretations, including UGESP, embrace an unconstitutional reading of Title VII insofar as they contemplate liability based on disparate effects alone, without regard to an employer's likely intent, and pressure employers to engage in race-based decision-making.

OLC also concluded that UGESP's validation study framework is inconsistent with Title VII's business-necessity defense, properly understood, because it imposes detailed and burdensome validation requirements beyond what Title VII requires. OLC further concluded that Federal regulations encouraging race-conscious action in response to actual or anticipated disparate impacts conflict with Title VII and the Constitution.

Executive branch legal interpretations issued by the President or the Attorney General are controlling on executive-branch employees. Exec. Order 14215, § 7, 90 FR 10,447, 10,449 (Feb. 24, 2025); cf. Exec. Order No. 12146, 44 FR 42,657, 42,658 (July 20, 1979). OLC exercises, by delegation from the Attorney General, the Attorney General's statutory authority to render legal advice and opinions to the President and to heads of Executive Branch departments and agencies. See28 U.S.C. 510-513; 28 CFR 0.25(a). OLC's core function is to provide controlling legal advice to Executive Branch officials on questions of law that are centrally important to the functioning of the Federal Government, and OLC's legal conclusions are binding within the Executive Branch unless and until superseded by controlling authority.

II. Purpose of This Interim Final Rule

This interim final rule removes OPM regulatory text that incorporates, requires, or advises consistency with UGESP. OPM is taking this action to conform its regulations to OLC's opinion and to eliminate any suggestion that Federal agencies must apply UGESP's adverse-impact and validation-study framework as a binding condition of lawful Federal selection procedures.

The rule is limited. It does not remove the job-analysis requirement in § 300.103(a). It does not remove the requirement in § 300.103(b) that there be a rational relationship between performance in the position to be filled and the employment practice used. It does not remove the requirement that the employment practice be professionally developed. It does not remove the nondiscrimination language in § 300.103(c). It also does not alter agency obligations under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Rehabilitation Act, the Genetic Information Nondiscrimination Act, veterans' preference laws, merit-system principles, prohibited personnel practice provisions under 5 U.S.C. 2301, or any other applicable Federal law.

OPM expects agencies to continue to use job-related, merit-based, and professionally sound selection procedures. This rule removes UGESP as a binding or advisory regulatory standard in the affected OPM provisions; this rule does not prohibit sound professional assessment practices. ( printed page 48235)

III. Administrative Procedure Act

OPM is issuing this rule as an interim final rule with request for comments. OPM finds good cause under 5 U.S.C. 553(b)(B) to issue this rule without prior notice and comment because prior notice and comment would be impracticable and contrary to the public interest. OLC has concluded that the UGESP framework, as reflected in existing Federal employment-selection guidance, is inconsistent with Title VII and the Constitution. Because OLC's legal conclusions are controlling within the Executive Branch unless superseded by controlling authority, leaving OPM regulatory text in place that incorporates, requires, or advises consistency with UGESP would create immediate confusion for Federal agencies administering employment practices.

This rule is limited and deregulatory. It removes references to UGESP but does not eliminate OPM's independent requirements that Federal employment practices be based on job analysis, be rationally related to performance in the position to be filled, be professionally developed, and be administered without prohibited discrimination. OPM also finds good cause under 5 U.S.C. 553(d)(3) for this rule to take effect upon publication. In addition, the rule relieves a restriction within the meaning of 5 U.S.C. 553(d)(1) because it removes regulatory text that could be read to require agencies to apply UGESP's adverse-impact and validation-study framework as a condition of OPM regulation.

OPM invites comments on all aspects of this interim final rule. After considering timely comments, OPM may issue a subsequent final rule confirming, modifying, or withdrawing this interim final rule.

IV. Section-by-Section Explanation

Part 300—Employment (General). OPM amends § 300.103(c) by removing the sentence stating that employee-selection procedures must meet the standards established by UGESP, where applicable. The remaining nondiscrimination language in § 300.103(c), and the job-analysis and rational relationship requirements in § 300.103(a) and (b), remain in effect.

Part 330—Recruitment, Selection, and Placement (General). OPM amends § 330.213(d) by removing the reference to UGESP at 29 CFR part 1607. As amended, agencies using category rating to assess Reemployment Priority List placement priority candidates must continue to define each quality category through job analysis conducted in accordance with part 300 of title 5. This preserves OPM's Federal civil service job analysis requirements while eliminating incorporation of UGESP's adverse impact and validation framework.

Part 337—Examining System. OPM amends § 337.303(b) by removing the reference to UGESP at 29 CFR part 1607. As amended, agencies using category rating must continue to define each quality category through job analysis conducted in accordance with part 300 of title 5. This preserves OPM's Federal civil-service job-analysis requirements while eliminating incorporation of UGESP's adverse-impact and validation framework.

Part 720—Affirmative Employment Programs. OPM removes the advisory text in § 720.206 stating that agency selection processes must be consistent with UGESP and reserves the section. In addition, OPM removes similar text in the Part 720 Appendix that states that OPM should advise all agencies that all job qualifications, personnel procedures and criteria must be consistent with UGESP. Part 720 continues to govern recruitment program requirements, and this rule does not otherwise amend agency recruitment obligations.

V. Expected Effects

This rule is deregulatory. It removes regulatory text that could be read to require agencies to apply UGESP's adverse-impact and validation-study framework to Federal selection procedures. The rule does not require agencies to adopt new systems, conduct new studies, or submit new reports. OPM expects that agencies may need to review internal policy documents, delegated examining materials, category-rating procedures, or training materials to remove outdated references to UGESP, but OPM does not expect this review to impose significant costs.

The rule may reduce administrative burden by clarifying that agencies need not conduct UGESP validation studies or adverse-impact analyses as a matter of OPM regulation. Agencies remain responsible for ensuring that selection practices are based on merit, supported by job analysis, rationally related to job performance, professionally developed, and administered without prohibited discrimination.

VI. Severability

The amendments made by this rule are severable. If any provision of this rule, or the application of any provision to any person or circumstance, is held invalid, OPM intends that the remaining provisions and applications remain in effect to the fullest extent permitted by law.

VII. Regulatory Review

OPM has examined this rule under Executive Orders 12866 and 13563. This rule removes regulatory requirements and advisory text and does not impose new compliance obligations. This rule is not a significant regulatory action under Executive Order 12866. For the reasons discussed above, this rule is a deregulatory action under E.O. 14192.

VIII. Regulatory Flexibility Act

The Director of OPM certifies that this rule will not have a significant economic impact on a substantial number of small entities because the rule applies only to Federal agencies and Federal employment practices.

IX. Federalism

This rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, this rule does not have federalism implications warranting preparation of a Federalism Assessment.

X. Civil Justice Reform

This rule is intended to provide a clear legal standard by removing obsolete or legally inconsistent cross-references. OPM has reviewed this rule in accordance with applicable civil-justice-reform principles and determined that it is written to minimize litigation, eliminate ambiguity, and reduce burden.

XI. Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by State, local, or Tribal governments, in the aggregate, or by the private sector, of $100 million or more, adjusted annually for inflation, in any one year. Accordingly, no written assessment under the Unfunded Mandates Reform Act is required.

XII. Paperwork Reduction Act

This rule does not contain a collection of information under the Paperwork Reduction Act of 1995. It does not require agencies, employees, applicants, or members of the public to submit information to OPM.

XIII. Congressional Review Act

This rule is subject to the Congressional Review Act. OPM will submit the rule and other required information to Congress and the ( printed page 48236) Comptroller General before the rule takes effect. This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

Signing Statement

The Director of OPM, Scott Kupor, reviewed and approved this document and has authorized the undersigned to electronically sign and submit this document to the Office of the Federal Register for publication.

For the reasons stated in the preamble, the Office of Personnel Management amends 5 CFR parts 300, 330, 337 and 720 as follows:

Appendix to Part 720—[Amended]

91 FR 48234