Reinvigorating Merit-Based Hiring Through Candidate Ranking in the Competitive and Excepted Service (Rule of Many)

<RULE> OFFICE OF PERSONNEL MANAGEMENT <CFR>5 CFR Parts 302, 332, and 337</CFR> <DEPDOC>[Docket ID: OPM-2023-0015]</DEPDOC> <RIN>RIN 3206-AN80</RIN> <SUBJECT>Reinvigorating Merit-Based Hiring Through Candidate Ranking in the Competitive and Excepted Service (Rule of Many)</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Office of Personnel Management. <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> The Office of Personnel Management (OPM) is issuing this final rule to implement changes authorized by the National Defense Authorization Act (NDAA) for Fiscal Year 2019 governing the selection of candidates from competitive lists of eligibles. These changes are meant to encourage the use of rigorous, merit-based candidate rankings when hiring in the competitive and excepted service. They also provide expanded flexibility to agencies in the selection of candidates under delegated examining procedures. These changes also affect how agencies select candidates for excepted service appointments. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This rule will be effective on November 7, 2025. Agencies must be in full compliance with this final rule not later than March 9, 2026. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Mike Gilmore by telephone at (202) 936-3261 or Katika Floyd by telephone at (202) 606-0960; by email at <E T="03">employ@opm.gov;</E> by fax at (202) 606-4430; or by TTY at (202) 418-3134. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> The National Defense Authorization Act for Fiscal Year 2019 (the “Act”) authorized changes governing the selection of candidates from delegated examining certificates. Sec. 1107, Public Law 115-232, 132 Stat. 2002. It eliminated the “rule of three” and authorized agencies to certify a “sufficient number” of names, not less than three, from the top of the appropriate register or list of eligible candidates, to be considered for selection, using a cut-off score or other mechanism established by OPM known as the “rule of many.” The Act also affected how agencies may make selections under 5 CFR part 302, Employment in the Excepted Service. On July 21, 2023, OPM issued a proposed rule at 88 FR 47059 to implement these provisions. First, OPM proposed to revise 5 CFR 332.404 to reflect the rule of many that the Act codified in 5 U.S.C. 3317(a). Instead of being required to select from among the top three candidates for each vacancy on a numerically ranked list, an official may select any eligible candidate on the certificate of eligibles. The Act also codified at 5 U.S.C. 3318(e) the long-standing practice of applying the “three considerations rule.” Under numerical rating and ranking selection procedures, the three considerations rule found in 5 CFR 332.405 allows an appointing officer to remove a candidate from further consideration if they have considered that candidate three times for three separate appointments from the same or different certificates for the same position and makes a valid (legal) selection of another candidate each time. OPM proposed that, when making multiple selections from a certificate under the rule of many, starting with the fourth selection, the three considerations rule would allow one individual to be removed per selection. Under the Act, these provisions also apply to the excepted service. Accordingly, OPM proposed conforming edits to 5 CFR part 302. The 60-day comment period for the proposed rule lasted from July 21, 2023, to September 19, 2023. During that time, OPM received a total of 15 sets of comments from individuals, federal agencies, and organizations. In the first section below, we discuss comments that address topics related to the rule as a whole. In the sections that follow, we address comments related to specific aspects of this final rule. <HD SOURCE="HD1">General Comments</HD> Two organizations and an agency expressed general support for the proposed rule of many regulations. (OPM 2023-0015-0004, OPM-2023-0015-0010, and OPM-2023-0015-0012) OPM thanks them for their support. An individual expressed frustration that a lack of resources prevents agencies from providing meaningful comment on the rule but noted that the current hiring process is so cumbersome as to “not be[ ] worth the effort.” (OPM-2023-0015-0002) OPM will not address this comment because it is beyond the scope of the rulemaking. An organization proposed the establishment of an Office of the Ombudsman with authority to investigate individual candidates' complaints against maladministration. It felt that this office could also provide a more transparent look into federal hiring decisions. (OPM-2023-0015-0015) OPM does not believe it is necessary to require agencies to establish an Office of the Ombudsman to investigate individual candidate complaints with respect to the application of the rule of many or the three considerations rule. OPM notes the three considerations rule applied to the rule of three process for decades and did not require an Office of the Ombudsman. Further, removal of a candidate from consideration under the three considerations rule must be documented and added to the examining case file, which must be audited by the Delegated Examining Unit in accordance with the agency's Delegated Examining Agreement and the Delegated Examining Operations Handbook  <SU>1</SU> <FTREF/> (DEOH). A candidate may ask a hiring agency about the status and disposition of the application submitted and the non-selection. Lastly, because this provision is discretionary on the part of hiring agencies, a requirement to establish an Office of the Ombudsman may be overly burdensome and discourage use of this flexibility. <FTNT> <SU>1</SU>  Delegated Examining Operations Handbook, available at <E T="03">https://www.opm.gov/policy-data-oversight/hiring-information/competitive-hiring/deo_handbook.pdf.</E> </FTNT> An organization commented that OPM should use this rulemaking as an opportunity to promote skills-based hiring, assessments, and efficient processes. The organization added that the federal government will reap the most benefit from the rule of many when agencies have access to and use high-quality technical assessments to differentiate the best-qualified candidates and match them effectively to the core skills needed for open positions. The same organization also recommended OPM use this opportunity to remind agencies to tailor minimum qualifications based on position needs determined via a thorough job analysis and more strongly signal that regardless of the rating procedure used, agencies should focus on expanding adoption of technical assessments. (OPM-2023-0015-0004) Although these recommendations, which focus on the planning process, are beyond the scope of this rulemaking, which addresses the selection process, we acknowledge the sentiment and refer the commenter to Executive Order 14170, Reforming the Federal Hiring Process and Restoring Merit to Government Service (90 FR 8621); and the Merit Hiring Plan;  <SU>2</SU> <FTREF/> which require the use of skills-based assessments. <FTNT> <SU>2</SU>  The Merit Hiring Plan is available at <E T="03">https://www.chcoc.gov/content/merit-hiring-plan.</E> </FTNT> <HD SOURCE="HD1">Comments Regarding the Rule of Many</HD> The “rule of many” is a numerical rating process in which applicants are assigned numerical scores (including veterans' preference points, if applicable, for preference eligible veterans), listed in rank-order, and considered for selection. OPM proposed that an agency must use one of four methods to determine the number of applicants referred for selection. OPM also proposed a number of factors that agencies should consider in determining which method to use. The first method is to use a cut-off score based on the assessment(s) used and supported by job analysis data. For this method, test measurement experts knowledgeable about the assessment(s) used establish a minimum score to identify qualified applicants that are highly qualified and can be successful in the position. The second method is to use a cut-off score based on business necessity. The third method is to establish a set number of eligible applicants to refer from the top of the ranked list of applicants. The fourth method is to establish a percentage of the eligible applicants to refer from the top of the ranked list of applicants. OPM also proposed that an agency must use one of these methods to establish the number of applicants it will refer prior to announcing the vacancy and must document the mechanism used to allow for later review. OPM received comments and questions about several aspects of the rule of many. One individual asked how the rule of many is different from category rating. (OPM-2023-0015-0003) Category rating differs in that applicants are not given a numerical score; instead, the agency assesses candidates against job-related criteria and then places them into two or more pre-defined categories. With category rating, veterans' preference is applied by listing preference eligibles ahead of non-preference eligible applicants in each category. Selections are made from the highest quality category. For both rule of many certificates and category rating certificates, 10 percent or more disabled veterans are placed at the top of the certificate ( <E T="03">i.e.,</E> ahead of all other applicants under rule of many and in the highest quality category ahead of other applicants for category rating certificates), except for scientific and professional positions at the GS-9 grade level or above. An agency asked if agencies would have the choice of using the category rating process or the rule of many (OPM-2023-0015-0007). Under this final rule, agencies have the choice to use either category rating or the rule of many. In choosing which process to use, an a ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 97k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━