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Office of Personnel Management.


Final rule.


The Office of Personnel Management (OPM) is issuing a final regulation to designate two sections of the Alternative Ranking and Selection Procedures from the Chief Human Capital Officers Act of 2002 (Title XIII of the Homeland Security Act) as veterans' preference requirements for purposes of a prohibited personnel practice violation, thereby aligning these sections with other statutory provisions covering veterans' preference.


This rule is effective February 22, 2006.

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Linda Watson by telephone at (202) 606-0830; by fax at (202) 606-2329; by TTY at (202) 418-3134; or by e-mail at

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On April 7, 2005, OPM published a proposed rule at Federal Register 70 FR 17160 designating sections 3319(b) and (c)(2) of title 5, United States Code (U.S.C.) as veterans' preference requirements for purposes of 5 U.S.C. 2302(b)(11). OPM's authority to designate in regulation a provision of law as a “veterans' preference requirement” is prescribed in 5 U.S.C. 2302(e)(1)(G). The purpose of this designation is to align sections 3319(b) and (c)(2) with the other statutory provisions covering veterans' preference that are listed in section 2302(e)(1) as constituting veterans' preference requirements.

As background, this action completes the implementation of specific provisions of the Chief Human Capital Officers Act of 2002 (Act), Public Law 107-296. The Act provides Federal agencies with a number of human resources flexibilities to enhance their recruitment and hiring programs. These flexibilities include the alternative (category) rating and selection procedures which were codified in 5 U.S.C. 3319. This section provides agencies with the authority to develop a category-based rating method to assess and rate job applicants for positions filled through the competitive examining process.

Section 3319(b) protects the rights of preference eligibles by placing them ahead of non-preference eligibles within each category in lieu of adding veterans' preference points or applying the “rule of three.”

Section 3319(c)(2) prohibits appointing officials from passing over a preference eligible in the same quality category from which a selection is made to select a non-preference eligible unless the requirements of section 3317(b) or 3318(b) are satisfied.

This rule designates sections 3319(b) and (c)(2) as veterans' preference requirements, for which, failure to comply constitutes a prohibited personnel practice. For additional background information, please refer to the proposed rule.

During the comment period, OPM received six comments to the proposed regulation. Two agencies submitted their comments supporting the proposed regulation and the remaining comments were outside the scope of this rule.

We are therefore issuing the final regulation with only stylistic changes.

E.O. 12866, Regulatory Review

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

Regulatory Flexibility Act

I certify that these regulations would not have a significant economic impact on a substantial number of small entities (including small businesses, small organizational units, and small governmental jurisdictions) because they would only apply to Federal agencies and employees.

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List of Subjects in 5 CFR Part 337

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Linda M. Springer,

Director, U.S. Office of Personnel Management.

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Accordingly, OPM is amending

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1. Revise the authority citation for part 337 to read as follows:

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Authority: 5 U.S.C. 1104(a)(2), 1302, 2302, 3301, 3302, 3304, 3319, 5364; Sec. 1413, Pub. L. 108-136, 117 Stat. 1392, 1665; E.O. 10577, 3 CFR 1954-1958 Comp., p. 218; 33 FR 12423, Sept. 4, 1968; 45 FR 18365, Mar. 21, 1980.

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Subpart C—Alternative Rating and Selection Procedures

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2. Revise § 337.304 to read as follows:

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Veterans' preference.

In this subpart:

(a) Veterans' preference must be applied as prescribed in 5 U.S.C. 3319(b) and (c)(2);

(b) Veterans' preference points as prescribed in section 337.101 of this part are not applied in category rating; and

(c) Sections 3319(b) and 3319(c)(2) of title 5, U.S.C. constitute veterans' preference requirements for purposes of 5 U.S.C. 2302(b)(11)(A) and (B).

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[FR Doc. 06-550 Filed 1-20-06; 8:45 am]