[Federal Register: June 15, 2004 (Volume 69, Number 114)]
[Rules and Regulations]
[Page 33271-33277]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15jn04-1]
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Rules and Regulations
Federal Register
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[[Page 33271]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Parts 230, 301, 316, 337, and 410
RIN 3206-AJ99
Organization of the Government for Personnel Management, Overseas
Employment, Temporary and Term Employment, Recruitment and Selection
for Temporary and Term Appointments Outside the Register, Examining
System, and Training
AGENCY: Office of Personnel Management.
ACTION: Final rule.
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SUMMARY: The Office of Personnel Management (OPM) is revising its
regulations to implement certain Governmentwide human resources
flexibilities contained in the Chief Human Capital Officers Act of 2002
(Title XIII of the Homeland Security Act). These regulations provide
agencies with: The ability to appoint qualified candidates for
positions in the competitive service using direct-hire procedures;
increased flexibility in assessing applicants using alternative
(category-based) rating and selection procedures; the authority to pay
or reimburse the costs of academic degree training from appropriated or
other available funds under specified conditions; and increased
flexibility to use academic degree training to address agency-specific
human capital requirements and objectives. This final regulation also
removes Recruitment and Selection for Temporary and Term Appointments
Outside the Register, and all related references including temporary
appointments pending establishment of a register (TAPER) authority.
EFFECTIVE DATES: July 15, 2004.
FOR FURTHER INFORMATION CONTACT: On alternative rating and selection
procedures, Ms. Linda Watson by telephone at (202) 606-0830, fax at
(202) 606-2329 or by e-mail at lmwatson@opm.gov. On direct-hire
authority, emergency indefinite appointments, overseas employment,
TAPER, and outside the register appointments, Mr. Larry Lorenz by
telephone at (202) 606-0830, fax at (202) 606-2329 or by e-mail at
dmtyrrel@opm.gov. On academic degree training, Ms. LaVeen M. Ponds by
telephone at (202) 606-1394, fax at (202) 606-2329 or by e-mail at
lmponds@opm.gov. Ms. Watson, Ms. Tyrrell and Ms. Ponds may also be
contacted by TTY at (202) 418-3134.
SUPPLEMENTARY INFORMATION: On June 13, 2003, OPM published interim
regulations at Federal Register 68 FR 35265, to implement provisions of
the Chief Human Capital Officers Act of 2002 (Title XIII of the
Homeland Security Act). The Chief Human Capital Officers Act of 2002
(Act) provides Federal agencies with a number of human resources (HR)
flexibilities. These flexibilities include direct-hire authority and
alternative (that is, category) rating and selection procedures, which
will aid in recruitment and hiring. The Act also provides Federal
agencies with the authority to pay or reimburse employees for the costs
of academic degree training. For additional background information on
these flexibilities, please refer to the interim regulations.
During the comment period, OPM hosted four briefings to introduce
the new flexibilities. We received written and oral comments from six
Federal agencies, one employee union, a Federal program director, one
private sector company, and numerous Federal employees and human
resources professionals. Based on these comments, we have made several
changes in the final regulations to adopt suggestions or to clarify
intent. We have addressed these comments as they apply within each
flexibility.
Additional information on direct-hire and category rating and
selection procedures has been added to OPM's Delegated Examining
Operations Handbook. Information on approved Governmentwide direct-hire
authorities can be obtained by visiting OPM's Web site at http://www.opm.gov
and accessing the document entitled ``Primary Appointing
Authorities for Career and Career Conditional Employees'' from the Web
site index. We have also posted fact sheets on our Web site that
address many of the questions received on these new flexibilities. To
access these fact sheets, refer to the individual flexibility in the
Web site index.
Direct-Hire Authority
Section 3304(c) of title 5, United States Code, provides agencies
with the authority to appoint candidates directly to jobs for which OPM
determines that there is a severe shortage of candidates or a critical
hiring need.
We asked agencies to comment on whether OPM should combine the
requirements and justification for direct-hire authorities in a single
section of the regulations, or whether we should continue to publish
them in separate sections. Three of the four agencies responding to our
request recommended we retain this information in separate sections.
Therefore, this information will remain in separate sections in the
final regulation.
The final regulation provides that OPM may independently decide
that a severe shortage of candidates or a critical hiring need exists,
either Governmentwide or in specified agencies, for one or more
specific occupational series, grades (or equivalent), or geographic
locations. Alternatively, an agency may, in a written request to OPM,
identify the position(s) for which it believes a severe shortage or a
critical hiring need exists. The agency must support its request with
relevant evidence, as described below. Agencies that use this direct-
hire authority must adhere to public notice requirements, as set forth
in 5 U.S.C. 3327 and 3330, and 5 CFR part 330, subpart G.
Discussion of Comments
Two agencies suggested that the authority to approve the use of
direct-hire authority be delegated to agencies, and if not delegated,
that the regulation require requests be submitted from the agency
headquarters level. Based on our experience to date, there are widely
varying interpretations of the appropriate use of direct-hire
authority. OPM will, therefore, retain approval authority. However, for
consistent application within individual agencies, requests for direct-
hire authority should be submitted by the agency
[[Page 33272]]
headquarters level. We have added this requirement to the regulation.
One agency suggested we include, in the definition portion of the
regulation, the same language explaining when a ``critical need''
exists that was published in the interim regulation supplementary
information. In addition, it was suggested that we substitute
``difficult to identify'' for ``unable to identify'' in the definition
of ``severe shortage of candidates'' to more realistically describe a
severe shortage situation. We have added these language changes in the
regulation for clarity.
We received several agency comments and questions about the ability
to use a direct-hire authority if a delegated examining unit (DEU) is
not present. Although an agency using direct-hire authority must have a
delegated examining authority, the agency is not required to have a DEU
in place. We have clarified this in the regulation.
One agency commented that the required justification for a direct-
hire authority based on a critical hiring need is excessive and
burdensome. The agency recommended the regulation provide for agencies
to use direct-hire based on a critical hiring need to prevent a
staffing crisis rather than to address an existing one. This comment is
outside the scope of the provisions of the Act and the regulation. The
legislative language provides for direct-hire authority, outside the
merit system, when a critical hiring need exists. We want to emphasize,
however, that the regulation provides a number of criteria that can be
used to evidence a critical hiring need, as they apply to a specific
situation. These criteria, not necessarily all-inclusive, present
examples of the type of information that will support reasonable
evidence that the agency is experiencing a critical situation.
A union objected to the use of direct-hire authority for a severe
shortage of candidates unless a special salary rate had been
established for the position. Special salary rates are one of the many
flexibilities agencies have to address their recruitment difficulties.
Establishing a special salary rate is not a prerequisite for obtaining
approval for a direct-hire authority. Special salary rates were
included in the regulation as an example of a flexibility an agency may
use to support its justification for a severe shortage of candidates.
We have added language to clarify our intention.
The same union also noted that the regulation requires agencies to
submit supporting evidence when requesting direct-hire authority based
on a severe shortage of candidates or a critical hiring need, but does
not require the same evidence from OPM when deciding on its own that a
need exists. In addition, the union commented that similar evidence
from OPM to support the need for an extension of existing direct-hire
authority should be required. We agree that these additions should be
included in the regulation and have added clarifying language.
The union also commented that the ``periodic'' review of existing
direct-hire authorities should adhere to a specific schedule and that
the content of reviews and the requirement for publication should be
identified. We have determined it to be impractical to regulate a
schedule for reviewing direct-hire authorities. However, we will ensure
that these reviews will take place often and will focus on continued
adherence to regulatory intent. We have not adopted this suggestion.
Elimination of Outside-the-Register Procedures
OPM has eliminated 5 CFR part 333, Recruitment and Selection for
Temporary and Term Appointments Outside the Register, based on its
conclusion that this hiring authority is now obsolete.
One Federal agency submitted comments opposing the elimination of
the outside-the-register procedures. The comments did not adequately
explain why using other merit-based hiring authorities does not enable
the agency to meet its hiring needs. Nor did the agency provide any
compelling independent reason for retaining outside-the-register
procedures. The comments have not been adopted and the outside-the-
register procedures are eliminated.
Elimination of the TAPER Regulation
Based on the elimination of the outside-the-register procedure, OPM
has also eliminated the Temporary Appointments Pending the
Establishment of a Register (TAPER) regulation.
One Federal agency submitted comments opposing the elimination of
the TAPER regulation. The comments did not adequately explain why the
agency cannot use other merit-based hiring authorities to meet its
hiring needs. Nor did the agency provide any compelling independent
reason for retaining the ability to make TAPER appointments. As
described in the interim regulation's supplemental information, this
regulation has been shown to have outlived its usefulness, and other
appropriate appointing authorities are available for use in its place.
The comments have not been adopted and the TAPER regulation is
eliminated.
Eliminating the TAPER regulation will not adversely affect
employees currently serving under TAPER appointments. These individuals
will continue under these appointments until they have completed the 3
years of service that entitles them, under 5 U.S.C. 3304a, to be
converted to career appointments.
Category Rating and Selection Procedures
Background
Agencies have authority under 5 U.S.C. 3319 to develop a category-
based rating method as an alternative way of assessing job applicants
for positions filled through the competitive examining process.
Traditionally, applicants for Federal jobs are assigned numerical
scores, including veterans' preference points, if appropriate, and are
considered for selection based on the ``rule of three'' (5 U.S.C.
3318(a)). The category rating method prescribed by the Act does not add
veterans' preference points or apply the ``rule of three'' but protects
the rights of veterans by placing them ahead of non-preference
eligibles within each category. Preference eligibles who meet minimum
qualification requirements and who have a compensable service-connected
disability of at least 10 percent must be listed in the highest quality
category, except when the position being filled is scientific or
professional at the GS-9 grade level or higher. When using category
rating, agencies must follow veterans' preference procedures as
specified in 5 U.S.C. 3319(b) and (c)(2). Consistent with this
requirement and with 5 U.S.C. 2302(e)(1)(G), OPM intends to promulgate
a regulation in the near future designating section 3319(b) and (c)(2)
as a ``veterans' preference requirement'' for purposes of the
prohibited personnel practice described in 5 U.S.C. 2302(b)(11). Please
refer to the interim regulations' supplementary information in Federal
Register dated June 13, 2003, 68 FR 35265 for a full discussion of the
category rating method.
Discussion of Comments
Based on the complexity of the comments on category rating, we have
organized them into topic areas for clarity and for ease of reference.
General
One agency requested that the regulations specify that category
rating may be used for term and temporary appointments. Category rating
is a method for evaluating applicants under
[[Page 33273]]
a competitive examining system. It is not a separate appointing
authority. Category rating may be used to fill any competitive service
position, including a position filled through a term or temporary
appointment. This is reflected in sections 316.302 and 316.402 of the
regulation.
One agency requested clarification on the proper placement of the
word ``competencies'' in relation to the words ``knowledge, skills, or
abilities'' cited in Sec. 337.302(b). We have modified that section to
clarify our meaning. This agency also suggested we change the wording
in Sec. 337.303(b) to read ``based on job analysis'' instead of
``through job analysis.'' We did not adopt this suggestion because the
chosen phrase is consistent with the language in other guides issued by
OPM.
Vacancy Announcement
Three agencies and several Federal employees suggested
clarification of what is required in the vacancy announcement when
using category rating.
The current vacancy announcement requirements of 5 CFR part 330 and
Executive Order 13078, requiring the agency to state how applicants
will be rated, have not changed. However, agencies have a choice in
their basis of rating. Agencies must decide on rating and selection
procedures in advance of posting a vacancy announcement. Once a
procedure is chosen, it must be described in the vacancy announcement.
Traditionally, agencies described rating procedures in general
terms under the ``Basis of Rating'' heading in the vacancy
announcement. Under category rating procedures, agencies will continue
to use the ``Basis of Rating'' as a means of communicating rating
procedures to applicants. Agencies can simply state whether the rating
is based on numerical rating procedures or category rating procedures
and how veterans' preference will be applied.
Also, agencies were concerned that the statement ``Describe each
quality category in the job announcement * * *'' is ambiguous and could
be read as tantamount to a requirement to publish the crediting plan
and benchmarks in the vacancy announcement. No such requirement
applies.
When describing each quality category, agencies may continue to use
the ``Qualification Requirement'' heading to describe each quality
category. This description could vary from naming the quality
categories to describing the competencies or the knowledge, skills, and
abilities required for each quality category. OPM does not expect
agencies to disclose crediting plans and/or rating schedules with
scoring keys to the general public because doing so would jeopardize
the integrity and validity of the assessment. These issues are
addressed in OPM's Delegated Examining Operations Handbook (DEOH). No
changes in the regulation are necessary to respond to this comment.
Veterans' Preference
Two agencies requested that OPM clarify how to use category rating
procedures to rank preference eligibles with a service-connected
disability of 10 percent or more.
Under the traditional numerical rating and ranking procedures, 5
U.S.C. 3313 instructs agencies to place preference eligibles, who meet
the minimum qualification requirements, at the top of the list of
eligibles, regardless of their numerical scores, for all positions
except scientific and professional positions at the GS-09 (and
equivalent) grade level or higher. When filling scientific and
professional positions at the GS-09 (and equivalent) grade level or
higher, these preference eligibles are ranked according to their
numerical scores, including points added under 5 U.S.C. 3309.
Under category rating, the same concept applies. The Act instructs
agencies to place preference eligibles, who meet the minimum
qualification requirements, in the highest quality category when
filling all positions except scientific and professional positions at
the GS-09 (and equivalent) grade level or higher. These preference
eligibles are placed above the non-preference eligibles. When filling
scientific and professional positions at the GS-09 (and equivalent)
grade level or higher, these preference eligibles are placed above the
non-preference eligibles within the quality category in which they were
assessed.
Within a quality category, agencies may list preference eligibles
above non-preference eligibles in any order (such as type of
preference, alphabetical order, Social Security number, etc.). An
example of how to rank preference eligibles with a service-connected
disability of 10 percent or more is in Chapter 6 of the DEOH.
Several agencies and Federal employees suggested that OPM explain
how to remove preference eligibles from the list after three
considerations under category rating.
Currently, 5 U.S.C. 3317(b) allows an appointing official to remove
a preference eligible from further consideration after considering and
passing over the preference eligible three times. This same rule
applies under category rating. A preference eligible within a quality
category must receive three bona fide considerations before he or she
may be eliminated from further consideration. We intend to address the
possibility of adding information about how this rule applies to
preference eligibles and whether it applies to non-preference eligibles
in an upcoming amendment to this regulation, which will be published
with a request for comments.
Reporting Requirements
One agency suggested that OPM include the category rating reporting
requirements in the regulation. For convenience and clarity, we added
the reporting requirements in Sec. 337.306 of the final regulation.
These reporting requirements are also located in Chapter 5 of the DEOH.
One agency noticed that the reporting requirements did not include all
minority groups in the annual report to Congress. The Act requires that
agencies submit information on the impact category rating has on hiring
veterans and particular minorities. Because the Act does not include
all minority groups in the list of minorities, we may not require
agencies to add to the specific groups included in the Act. An agency
may do so on its own.
Several Federal employees asked for specific information on where
agencies should send their annual reports on category rating. We have
added this information at Sec. 337.305 of the final regulation and to
the DEOH.
One agency suggested, for reporting consistency, that OPM develop a
standard reporting form for use by all agencies. We do not plan to
develop a reporting form at this time. Each agency is responsible for
developing its own reporting format.
One agency suggested that OPM develop a training module on category
rating for its managers. We did not adopt this suggestion because it is
outside the scope of the regulation.
Merging Quality Categories
Four agencies and several Federal employees suggested that OPM
explain the merging of quality categories. The Act allows agencies to
merge the highest quality category with the next lower quality
category, if the highest quality category has fewer than three
candidates. Merging quality categories is optional. When merging
quality categories, preference eligibles from the next lower quality
category are placed
[[Page 33274]]
above the non-preference eligibles in the newly merged quality
category.
Additional information on merging quality categories is described
in the DEOH.
Use of Numerical Scores
Three agencies requested clarification on using examinations that
produce numerical scores (e.g., Luevano Consent Decree examination or
rating schedule) with category rating. We did not include this
information in the final regulation, but will publish guidance on this
issue that will be posted on OPM's Web site at http://www.opm.gov.
Accountability
One professional organization commented that in order to promote
accountability, an agency that decides to use category rating should
first be required to publicize the data upon which it relied in
reaching its decision.
Agencies with delegated examining authority are required to
establish an accountability system in compliance with all examining
laws and regulations, including category rating. Additionally, OPM has
oversight responsibility to ensure that each agency complies with
competitive examining laws and regulations. OPM plans to add the
alternative ranking and selection procedures to its evaluation agenda
to ensure that agencies are complying with the category rating
regulations. Because periodic oversight is a sufficient mechanism for
accountability, we chose not to adopt the recommendations that agencies
should be required to publish their data.
Wage Grade Positions
An agency asked whether category rating may be used for rating and
ranking candidates for wage grade positions. Neither the Act nor these
regulations bar the use of category rating for wage grade positions.
Excepted Service Positions
A Federal employee suggested that agencies should be able to use
category rating to fill excepted service positions. We have not adopted
this suggestion. The Act authorizes agencies with delegated examining
authority under 5 U.S.C. 1104(a)(2) to develop a category rating system
for jobs filled through competitive examining. This authority cannot be
extended to the excepted service. However, 5 CFR part 302 gives
agencies the flexibility to develop procedures similar to category
rating to fill excepted service positions.
Expanded Academic Degree Training Authority
Section 1331(a) of the Act amended the provisions of 5 U.S.C. 4107
by expanding the agency's authority to pay or reimburse employees for
the cost of academic degree training when such training contributes
significantly to meeting an identified agency training need, resolving
an identified agency staffing problem, or accomplishing goals in the
agency's human capital management strategic plan.
Discussion of Comments
One agency suggested the reference to 5 CFR 335.103(c)(1)(iii),
which requires competition for certain training opportunities that lead
to promotion, be added to the requirement for selecting employees for
academic degree programs. We agree and have added the reference 5 CFR
335.103(c)(1)(iii) to Sec. 410.308(c). The same agency questioned
whether Career Transition Assistance Plan (CTAP) requirements should be
followed concerning details for training assignments that may become
permanent. The scenario presented by the agency concerning CTAP and
detail assignments is outside the scope of the regulation.
A union suggested that OPM redraft the regulation to reincorporate
constraints on the use of academic degrees as previously written in 5
CFR 410.308 to guard against the abusive spending of funds for closely
related purposes. The wording in the interim regulation does not remove
protection against abusive use of funds. Agencies continue to be
required to establish written training policies and procedures to
support and document the use of this expanded authority in accordance
with the criteria in law. Agencies are also required to maintain
records on the use and efficacy of their academic degree training
programs. However, we have rephrased Sec. 410.308(c) to address
specific criteria concerning the use of this authority.
Two agencies commented that sections 410.309 and 410.310 need
clarification in light of the expanded authority to pay for academic
degrees. They indicated that if the authority is to be a useful tool
for retention, it should not require an agency paying for a four-year
degree to commit the beneficiary to a 12-year service obligation.
Although these sections do not specifically address the expanded
academic degree authority, they are integral to the implementation of
this authority. Therefore, we have considered the comments and concur
that sections 410.309 and 410.310 should be clarified to explain
agencies' flexibilities when using this academic degree training
authority. We have added a definition to Sec. 410.101 and a new
paragraph (d) to Sec. 410.310 to provide an additional method to
compute time in training. These changes allow agencies more flexibility
in establishing effective continued service requirements following
training. Additional information and an example on how to apply section
410.310(d) can be found on the OPM Web site at http://www.opm.gov/hrd/lead/pubs/handbook/opmintro.asp.
Other Comments, Including Those on Overseas Employment
One agency and one union commented on the need for clarification of
overseas limited appointing authority. We have revised Sec. 301.201 to
clarify its meaning.
Two Federal agencies commented that restating referenced sections
of title 5, U.S.C., instead of referencing them, would make the
regulations clearer and easier to apply. We have adopted this
suggestion throughout the regulation.
Executive Order 12866, Regulatory Review
This final rule has been reviewed by the Office of Management and
Budget in accordance with Executive Order 12866.
Regulatory Flexibility Act
I certify that these regulations will 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 only apply to Federal agencies and
employees.
List of Subjects in 5 CFR Parts 230, 301, 316, 337, and 410
Civil defense, Education, Government employees.
U.S. Office of Personnel Management.
Kay Coles James,
Director.
0
Accordingly, under the authority of 5 U.S.C. 3304, 3319, and 4107, the
interim rule (68 FR 35265) amending 5 CFR parts 230, 301, 316, 337, and
410 is adopted as final with the following changes:
PART 230--ORGANIZATION OF THE GOVERNMENT FOR PERSONNEL MANAGEMENT
0
1. The authority for part 230 continues to read as follows:
Authority: 5 U.S.C. 1302, 3301, 3302; E.O. 10577; 3 CFR 1954-
1958 Comp., p. 218; Sec. 230.401 also issued under 5 U.S.C. 1104.
[[Page 33275]]
Subpart D--Agency Authority To Take Personnel Actions in a National
Emergency
0
2. Revise Sec. 230.402(c), (h)(1), and (h)(2) to read as follows:
Sec. 230.402 Agency authority to make emergency-indefinite
appointments in a national emergency.
* * * * *
(c) Appointment under direct-hire authority. An agency may make
emergency-indefinite appointments under this section using the direct-
hire procedures in part 337 of this chapter.
* * * * *
(h) * * * (1) The term indefinite employee includes an emergency-
indefinite employee or an employee under an emergency appointment as
used in the following: parts 351, 353 of this chapter, subpart G of
part 550 of this chapter, and part 752 of this chapter.
(2) The selection procedures of part 337 of this chapter apply to
emergency-indefinite appointments that use the direct-hire authority
under paragraph (c) of this section.
* * * * *
PART 301--OVERSEAS EMPLOYMENT
0
3. The authority citation for part 301 continues to read as follows:
Authority: 5 U.S.C. 3301, 3302; E.O. 10577, 3 CFR 1954-1958
Comp., p. 218, as amended by E.O. 10641, 3 CFR 1954-1958 Comp., p.
274, unless otherwise noted.
Subpart B--Overseas Limited Appointment
0
4. Revise Sec. 301.201 to read as follows:
Sec. 301.201 Appointments of United States citizens recruited
overseas.
When there is a shortage of eligible applicants, as defined at
Sec. 337.202 of this chapter, resulting from a competitive
announcement that is open to applicants in the local overseas area, an
agency may give an overseas limited appointment to a United States
citizen recruited overseas for a position overseas.
0
5. Revise Sec. 301.205 to read as follows:
Sec. 301.205 Requirements and restrictions.
The requirements and restrictions in subpart F of part 300 of this
chapter apply to appointments under this subpart.
PART 316--TEMPORARY AND TERM EMPLOYMENT
0
6. The authority citation for part 316 continues to read as follows:
Authority: 5 U.S.C. 3301, 3302; E.O. 10577, 3 CFR, 1954-1958
Comp., p. 218.
Subpart C--Term Employment
0
7-8. Revise paragraph (a) of Sec. 316.302 to read as follows:
Sec. 316.302 Selection of term employees.
(a) Competitive term appointment. An agency may make a term
appointment under part 332 of this chapter, by using competitive
procedures, or under part 337 of this chapter, by using direct-hire
procedures, as appropriate.
* * * * *
Subpart D--Temporary Limited Employment
0
9. Revise paragraph (a) of Sec. 316.402 to read as follows:
Sec. 316.402 Procedures for making temporary appointments.
(a) Competitive temporary appointments. In accordance with the time
limits in Sec. 316.401, an agency may make a temporary appointment
under part 332 of this chapter, by using competitive procedures, or
under part 337 of this chapter, by using direct-hire procedures, as
appropriate.
* * * * *
PART 337--EXAMINING SYSTEM
0
10-11. Revise the authority citation for part 337 to read as follows:
Authority: 5 U.S.C. 1104(a)(2), 1302, 3301, 3302, 3304, 3319,
5364; E.O. 10577, 3 CFR 1954-1958 Comp., p. 218; 33 FR 12423, Sept.
4, 1968; and 45 FR 18365, Mar. 21, 1980.
0
12. Revise subpart B to read as follows:
Subpart B--Direct-Hire Authority
Sec.
337.201 Coverage and purpose.
337.202 Definitions.
337.203 Public notice requirements.
337.204 Severe shortage of candidates.
337.205 Critical hiring needs.
337.206 Terminations, modifications, extensions, and reporting.
Sec. 337.201 Coverage and purpose.
OPM will permit an agency with delegated examining authority under
5 U.S.C. 1104(a)(2) to use direct-hire authority under 5 U.S.C.
3304(a)(3) for a permanent or nonpermanent position or group of
positions in the competitive service at GS-15 (or equivalent) and
below, if OPM determines that there is either a severe shortage of
candidates or a critical hiring need for such positions. It is not
required that this direct-hire authority be exercised by a delegated
examining unit. Requests for direct-hire authority must be submitted by
the agency's Chief Human Capital Officer (or equivalent) at the agency
headquarters level. OPM will determine the length of the direct-hire
authority based on the justification.
Sec. 337.202 Definitions.
In this subpart:
(a) A direct-hire authority permits hiring without regard to the
provisions of 5 U.S.C. 3309 through 3318; part 211 of this chapter; and
subpart A of part 337 of this chapter.
(b) A severe shortage of candidates for a particular position or
group of positions means that an agency is having difficulty
identifying candidates possessing the competencies or the knowledge,
skills, and abilities required to perform the job requirements despite
extensive recruitment, extended announcement periods, and the use, as
applicable, of hiring flexibilities such as recruitment or relocation
incentives or special salary rates.
(c) A critical hiring need for a particular position or group of
positions means that an agency has a need to fill the position(s) to
meet mission requirements brought about by circumstances such as, but
not limited to, a national emergency, threat, potential threat,
environmental disaster, or unanticipated or unusual event or mission
requirement, or to conform to the requirements of law, a Presidential
directive or Administration initiative.
Sec. 337.203 Public notice requirements.
Agencies must comply with public notice requirements as prescribed
in 5 U.S.C. 3327 and 3330, and subpart G of part 330 of this chapter
with respect to any position that an agency seeks to fill using direct-
hire authority.
Sec. 337.204 Severe shortage of candidates.
(a) OPM will determine when a severe shortage of candidates exists
for particular occupations, grades (or equivalent), and/or geographic
locations. OPM may decide independently that such a shortage exists, or
may make this decision in response to a written request from an agency.
(b) An agency when requesting direct-hire authority under this
section, or OPM when deciding independently, must identify the position
or positions that are difficult to fill and must provide supporting
evidence that demonstrates the existence of a severe shortage of
candidates with respect to the position(s). The evidence should
include, as applicable, information about:
(1) The results of workforce planning and analysis;
[[Page 33276]]
(2) Employment trends including the local or national labor market;
(3) The existence of nationwide or geographic skills shortages;
(4) Agency efforts, including recruitment initiatives, use of other
appointing authorities (e.g., schedule A, schedule B) and
flexibilities, training and development programs tailored to the
position(s), and an explanation of why these recruitment and training
efforts have not been sufficient;
(5) The availability and quality of candidates;
(6) The desirability of the geographic location of the position(s);
(7) The desirability of the duties and/or work environment
associated with the position(s); and
(8) Other pertinent information such as selective placement factors
or other special requirements of the position, as well as agency use of
hiring flexibilities such as recruitment or retention allowances or
special salary rates.
Sec. 337.205 Critical hiring needs.
(a) OPM will determine when there is a critical hiring need for
particular occupations, grades (or equivalent) and/or geographic
locations. OPM may decide independently that such a need exists or may
make this decision in response to a written request from an agency.
(b) An agency when requesting direct-hire authority under this
section, or OPM when deciding on its own, must:
(1) Identify the position(s) that must be filled;
(2) Describe the event or circumstance that has created the need to
fill the position(s);
(3) Specify the duration for which the critical need is expected to
exist; and
(4) Include supporting evidence that demonstrates why the use of
other hiring authorities is impracticable or ineffective.
Sec. 337.206 Terminations, modifications, extensions, and reporting.
(a) Termination and modification. On a periodic basis, for each
direct-hire authority, OPM will review agency use of the authority to
ensure proper administration and to determine if continued use of the
authority is supportable. OPM will terminate or modify a direct-hire
authority if it determines that there is no longer a severe shortage of
candidates or a critical hiring need. Likewise, when an agency finds
there are adequate numbers of qualified candidates for positions
previously filled under direct-hire authorities, based on severe
shortage of candidates, the agency is required to report this change of
events to OPM. OPM may also terminate an agency's authority when the
agency has used an authority improperly.
(b) Extension. OPM may extend direct-hire authority if OPM
determines, based on relevant, recent, and supportable data, that there
is or will continue to be a severe shortage of candidates or a critical
hiring need for particular positions as of the date the authority is
due to expire. In their requests for extensions of direct-hire
authorities, agencies must include an update of the supporting evidence
that demonstrated the need for the original authority.
(c) Reporting requirement. On a periodic basis, OPM may request
information from agencies regarding their use of these direct-hire
authorities. The requested information may include numbers of
positions, title, series, and grade of positions advertised under the
direct-hire authority, the number of qualified applicants, the specific
qualification criteria, and the number of applicants appointed under
the authority.
0
13. Revise Subpart C to read as follows:
Subpart C--Alternative Rating and Selection Procedures
Sec.
337.301 Coverage and purpose.
337.302 Definitions.
337.303 Agency responsibilities.
337.304 Veterans' preference.
337.305 Reporting requirements.
Sec. 337.301 Coverage and purpose.
This subpart implements the category rating and selection
procedures at 5 U.S.C. 3319. This law authorizes agencies with
delegated examining authority under 5 U.S.C. 1104(a)(2) to develop a
category rating method as an alternative process to assess applicants
for jobs filled through competitive examining.
Sec. 337.302 Definitions.
In this subpart:
(a) Category rating is synonymous with alternative rating as
described at 5 U.S.C. 3319, and is a process of evaluating qualified
eligibles by quality categories rather than by assigning individual
numeric scores. The agency assesses candidates against job-related
criteria and then places them into two or more pre-defined categories.
(b) Quality categories are groupings of individuals with similar
levels of job-related competencies or similar levels of knowledge,
skills, and abilities.
Sec. 337.303 Agency responsibilities.
To use a category rating procedure, agencies must:
(a) Establish a system for evaluating applicants that provides for
two or more quality categories;
(b) Define each quality category through job analysis conducted in
accordance with the ``Uniform Guidelines on Employee Selection
Procedures'' at 29 CFR part 1607 and part 300 of this chapter. Each
category must have a clear definition that distinguishes it from other
categories;
(c) Describe each quality category in the job announcement and
apply the provisions of part 330, subparts B, F, and G of this chapter;
(d) Place applicants into categories based upon their job-related
competencies or their knowledge, skills, and abilities; and
(e) Establish documentation and record keeping procedures for
reconstruction purposes.
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)(2); and
(b) Veterans' preference points as prescribed in section 337.101 of
this part are not applied in category rating.
Sec. 337.305 Reporting requirements.
Any agency that uses category rating must forward to OPM a copy of
the annual report that it must submit to Congress pursuant to 5 U.S.C.
3319(d). Agencies must send their annual reports to the Speaker of the
House and the President of the Senate. The report must include the
following information:
(a) The number of employees hired under the system;
(b) The impact that system has had on the hiring of veterans and
minorities, including those who are American Indian or Alaska Natives,
Asian, Black or African American, and native Hawaiian or other Pacific
Islanders; and
(c) The way managers were trained in the administration of category
rating.
PART 410--TRAINING
0
14. Revise the authority citation in part 410 to read as follows:
Authority: 5 U.S.C. 4101, et seq.; E.O. 11348, 3 CFR, 1967
Comp., p. 275.
Subpart C--Establishing and Implementing Training Programs
0
15. Amend Sec. 410.101 to add paragraph (i) to read as follows:
Sec. 410.101 Definitions.
* * * * *
(i) Established contact hours are the number of academic credit
hours assigned to a course(s) times the number
[[Page 33277]]
of weeks in a term times the number of terms required to complete the
degree.
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16. Revise Sec. 410.308 to read as follows:
Sec. 410.308 Training to obtain an academic degree.
(a) An agency may authorize training for an employee to obtain an
academic degree under conditions prescribed at 5 U.S.C. 4107(a).
(b) Colleges and universities participating in an academic degree
training program must be accredited by a nationally recognized body. A
``nationally recognized body'' is a regional, national, or
international accrediting organization recognized by the U.S.
Department of Education. The listing of accrediting bodies is available
through the Department.
(c) The selection of employees for an academic degree training
program must follow the requirements of Sec. 335.103(b)(3), Sec.
335.103(c)(1)(iii), and subpart A of part 300 of this chapter. The
selection and assignment must be accomplished to meet one or more of
the criteria identified in 5 U.S.C. 4107(a). Therefore, an agency may
competitively select and assign an employee to an academic degree
training program that qualifies the employee for promotion to a higher
graded position or to a position that requires an academic degree.
(d) Agency heads must assess and maintain records on the
effectiveness of training assignments under this section.
(e) On a periodic basis, OPM may request agency information on the
use and effectiveness of training assignments under this section.
0
17. Add paragraph (b)(3) to Sec. 410.309 to read as follows:
Sec. 410.309 Agreements to continue in service.
* * * * *
(b) Requirements. * * *
(3) The head of an agency shall establish procedures to compute
length of training period for academic degree training programs in
accordance with Sec. 410.310(d).
0
18. Amend Sec. 410.310 to add paragraph (d) to read as follows:
Sec. 410.310 Computing time in training.
* * * * *
(d) When an employee is pursuing an academic degree through an
agency academic degree training program, an agency may compute the
length of the academic degree training period based on the academic
institution's established contact hours.
[FR Doc. 04-13426 Filed 6-9-04; 5:03 pm]
BILLING CODE 6325-39-P