2021-23871. Hiring Authority for College Graduates

AGENCY:

Office of Personnel Management.

ACTION:

Interim rule with request for comments.

SUMMARY:

The Office of Personnel Management (OPM) is issuing an interim rule, with an opportunity for comment, to amend its career and career-conditional employment regulations. The revision is necessary to implement the John S. McCain National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2019, which requires OPM to issue regulations, in interim final form, establishing hiring authorities for college graduates into positions at specified grades in the competitive service. The intended effect of the authority is to provide additional flexibility in hiring eligible and qualified individuals.

DATES:

 

Effective date: This interim rule is effective December 6, 2021.

Comments due date: OPM must receive comments on or before January 4, 2022.

ADDRESSES:

You may submit comments, identified by the docket number or Regulation Identifier Number (RIN) for this proposed rulemaking, by the following method:

Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for sending comments.

All submissions must include the agency name and docket number or RIN for this rulemaking. Please arrange and identify your comments on the regulatory text by subpart and section number; if your comments relate to the supplementary information, please refer to the heading and page number. All comments received will be posted without change, including any personal information provided. Please ensure your comments are submitted within the specified open comment period. Before finalizing this rule, OPM will consider all comments we receive on or before the closing date for comments. OPM may make changes to the final rule in light of the comments we receive.

FOR FURTHER INFORMATION CONTACT:

Katika Floyd at [phone], by fax at [phone], TDD at [phone], or by email at [e-mail] .

SUPPLEMENTARY INFORMATION:

On August 13, 2018, the President signed Public Law 115-232, the National Defense Authorization Act for Fiscal Year 2019, ( i.e., the Act). Section 1108 of the Act established a new hiring authority, codified at 5 U.S.C. 3115, for appointing college graduates into positions at specified grades in the competitive service. This section also directs OPM to issue regulations, on an interim final basis, to implement this authority. Section 1108 of the Act also established a hiring authority for the time-limited appointments of Post-Secondary Students. OPM will issue regulations to implement the hiring authority for Post-Secondary students in a separate notice.

OPM is issuing interim regulations, with an opportunity for comments, that will create a new section 315.614 in subpart F of part 315, title 5, Code of Federal Regulations (CFR), and revise part 330 Recruitment, Selection, and Placement (General) to implement these provisions.

The interim rule for college graduates allows agencies to make appointments of eligible individuals directly into the competitive service, without regard to 5 U.S.C. 3309-3319 and 3330. Readers should note that this new hiring authority is separate and distinct from the Pathways Program and other programs for recent graduates authorized under the Executive Order 13562 (establishing the Pathways Programs, and providing for appointments in the excepted service for Interns, Recent Graduates, and Presidential Management Fellows as defined in that Order).

When using this authority, agencies must provide public notification in accordance with Section 1108, as codified at 5 U.S.C. 3315, and the merit system principles, and notify OPM, in accordance with 5 U.S.C. 3327(b). Because section 1108 of the Act waives the requirement for OPM to post a vacancy to be filled under this authority that would otherwise apply (5 U.S.C. 3330), agencies are not required to use www.USAJOBS.gov ( i.e., USAJOBS) to provide notice of these vacancies. Although posting on USAJOBS is optional, 5 U.S.C. 3327 requires agencies to notify OPM of the vacancies they intend to fill under this authority. OPM will provide additional information on meeting the requirements of 5 U.S.C. 3327(b) in supplemental guidance. Agencies may wish to use USAJOBS, nevertheless, in light of that system's ability to assist with the requirement to collect demographic information. Moreover, agencies must, pursuant to 5 U.S.C. 3327(b), notify OPM of positions to be filled through this authority, whether or not an agency uses USAJOBS. Agencies must advertise positions in a manner that provides for “diverse and qualified applicants,” 5 U.S.C. 3115(d)(2)(B), and “ensure[s] that potential applicants have appropriate information relevant to the positions” being filled. Id. at 3115(d)(2)(C). As indicated in 5 U.S.C. 3115(c), agencies must determine whether an applicant meets the eligibility requirements for the College Graduates hiring authority before giving that applicant further consideration. Agencies must then assess whether an eligible applicant meets the government-wide ( i.e., OPM-approved) or OPM-approved agency-specific minimum qualification standard for the position being filled.

Agencies are not required to provide selection priority to eligible and qualified applicants entitled to selection priority in accordance with 5 CFR part 330 subparts F, and G pertaining to Agency Career Transition Assistance Plans (CTAP), and Interagency Career Transition Assistance Plans (ICTAP). OPM has revised these subparts to include exceptions to these provisions when appointments are made using the college graduate authority.

Section 1108 of the Act also allows agencies to make appointments without regard to any provision of sections 3309 through 3319 of title 5. An agency may select any eligible individual who meets each minimum qualification standard, without regard to the application of veterans' preference, but must follow merit system principles, 5 U.S.C. 2301, in so doing. Agencies may appoint individuals under this authority to career or career conditional appointments (as appropriate) in the competitive service at the grade levels specified in 5 U.S.C. 3115.

OPM is adding a new § 315.614,

Interim § 315.614(a) Agency authority establishes that an agency may noncompetitively appoint an eligible and qualified College Graduate to any position classified by OPM in the administrative or professional series at or below the General Schedule (GS) 11 level (or equivalent).

Interim § 315.614(b) Eligibility defines an eligible College Graduate as an individual who has received a bachelors or advanced degree within two years of submitting an application for employment under this authority. For these purposes, a baccalaureate or graduate degree must be obtained from an institution of higher education in accordance with section 101(a) of the Higher Education Act of 1965, as codified at 20 U.S.C. 1001(a). The two-year eligibility period begins on the date the degree is received, not the date of the graduation ceremony. An agency may accept applications from applicants prior to the applicant receiving a degree. If such an applicant is selected, the applicant may not be appointed until after the degree is completed. An applicant who has applied for a specific position within the two-year eligibility period may be appointed to that position after the two-year eligibility period expires. For example, if a student receives a degree in May of 2020 and applies for a position in April of 2022; then the appointment may be made after May of 2022. The date on which an application is submitted is the date on which it was received by the hiring agency.

This section also makes clear that for individuals who have completed a degree and have an intervening period of obligated service of at least four years in the uniformed services, the two-year eligibility period begins on the date of the individual's discharge or release from the uniformed service. The intervening period of uniformed service must prevent the individual from applying within the standard two-year period for applying after completing a degree. For example, a service member completes a master's degree in May 2018 while serving in a four-year enlistment period that ends in May 2021. The service member's two-year eligibility period under the authority will begin in May 2021, upon discharge or release from uniformed service, because they were unable to apply and accept a position while completing their service obligation. Or an individual in the Reserve Officers Training Corps (ROTC) who has a four-year service obligation after graduation would be eligible to apply for a position under the authority within two years of completing the four-year service obligation.

Interim § 315.614(c) Qualifications explains that individuals appointed under this authority must meet each OPM-prescribed minimum qualification standard, or OPM-approved agency-specific minimum qualification standard, for the position being filled.

Interim § 315.614(d) Classification establishes that an agency may appoint an eligible and qualified individual to any position classified in the administrative and professional series at the GS 11 level or below (or equivalent), including positions with promotion potential beyond the GS-11 level. Agencies may refer to OPM's, “Introduction to the Position Classification Standards,” available at https://www.opm.gov/​policy-data-oversight/​classification-qualifications/​classifying-general-schedule-positions/​positionclassificationintro.pdf for a definition of these positions. In addition, agencies can refer to the “Handbook of Occupational Groups and Families” available at https://www.opm.gov/​policy-data-oversight/​classification-qualifications/​classifying-general-schedule-positions/​occupationalhandbook.pdf.

Interim § 315.614(e) Public notification contains the public notice and advertising requirements agencies must follow before filling a position using this provision. This section explains that if an agency using this authority does not use USAJOBS to post the position it must post a job announcement on its public facing home web page (home page), or at a minimum, display a link to the job announcement on the hiring agency's public facing home page. Agencies are free to additionally post announcements directly on third party recruitment boards ( e.g., LinkedIn, Monster, Yello) as long as the agency's public facing homepage also includes a link to a specific announcement.

This section requires that the agency's job announcement must include the following information about the position being filled: The position's title, series, grade level (or equivalent), minimum qualifications, the position's salary, whether the position has promotion potential to a higher grade(s), any pertinent flexibilities that may be offered in conjunction with the position ( e.g., telework opportunities or student loan repayments), and information on how to apply. This section also requires the agency to adhere to the merit system principles and perform appropriate recruiting and advertising activities to foster a diverse and qualified applicant pool when using the authority. An agency may use USAJOBS to satisfy the public notification requirements and the requirements of 5 U.S.C. 3327. If USAJOBS is not used to advertise a position(s), the agency must satisfy the requirements of 5 U.S.C. 3327 by providing OPM link(s) to the public notification(s) used to solicit applicants as those links are posted.

Interim § 315.614(f) Appointment Type makes clear that individuals are appointed to permanent career or career-conditional positions in the competitive service.

Interim § 315.614(g) Acquisition of competitive status explains that an individual appointed under this provision acquires competitive status upon completion of a probationary period in accordance with subpart H of this part.

Interim § 315.614(h) Tenure upon appointment states that an individual appointed under this provision becomes a career or career-conditional employee in accordance with § 315.201.

Interim § 315.614(i) Limitation on the number of appointments restricts the number of appointments an agency may make using this authority in a fiscal year. This section specifies that the number of appointments in any fiscal year may not exceed fifteen percent of the number of individuals appointed by the agency the previous fiscal year ( i.e., the fiscal year prior to the fiscal year in which an agency is using this authority) to professional or administrative positions at the GS-11 level (or equivalent) or below under competitive examining procedures. An appointing agency may not count appointments made using direct hire authorities or excepted service authorities, or selections under merit promotion authorities, when establishing the limit for a given fiscal year. In calculating this limitation, agencies must round up or down to the nearest whole number, if necessary, to eliminate a decimal place. Values ending in “.5” may be rounded up to the nearest whole number in determining an agency's cap limitation. Values ending in less than “.5” should be rounded down to the nearest whole number in determining an agency's cap limitation. For example, 15% of 217 is 32.55, which should be rounded up to 33 or .15% of 235 is 35.25, which should be rounded down to 35. This section also provides that OPM may establish a lower percentage limitation based on any factor OPM deems appropriate. OPM shall notify agencies via the OPM website and other venues (such as the Chief Human Capital Officer's Council) of any changes to the numerical limitation.

Interim § 315.614(j) Reporting requirements describes the type of data and frequency at which agencies must provide information to the Congress and OPM on their use of this authority. Agencies will be required to provide data on the total number of appointments; the grade levels and occupational series of the positions filled; the numerical limit established for the authority; the number of those appointed who have been separated; recruitment activities; and any difficulties encountered in using the authority. OPM will provide written guidance following publication of this rule describing the means by which agencies should collect this information, the timing of such collection and the groups as to which information should be collected.

Interim § 315.614(j)(2) establishes that OPM may request from agencies any additional information that it deems necessary to further evaluate the impact and effectiveness of this authority.

Interim § 315.614(k) describes the special provisions on the use of the authority by Department of Defense (DoD) in relation to other DoD specific hiring authorities.

Waiver of Proposed Rulemaking

Section 3115(f) of Title 5 of the U.S. Code, as enacted by section 1108(a) of Public Law 115-232 (Aug. 13, 2018), the John S. McCain National Defense Authorization Act for Fiscal Year (FY) 2019 (NDAA), directs the rulemaking shall be through “interim regulations, with an opportunity to comment.” Therefore, a general notice of proposed rulemaking, as typically required for rulemaking under 5 U.S.C. 553(b) and 1103(b) need not be issued in advance of this rule.

Expected Impact of This Interim Rule

OPM is issuing this rule to implement 5 U.S.C. 3115. This statute establishes a hiring authority for college graduates into certain positions at specified grades in the competitive service. The statute and this implementing regulation will allow agencies to make appointments of college graduates directly into the competitive service positions, without regard to rating, ranking and veterans' preference provisions in 5 U.S.C. 3309-3319 and 3330. This authority will be a useful tool as part of an overall strategy to implement strategic workforce and recruitment plans.

Costs

This interim final rule will affect the operations of over eighty Federal agencies—ranging from cabinet-level departments to small independent agencies. We estimate that this rule will require individuals employed by these agencies to develop policies and procedures to implement the rule and perform outreach and recruitment activities when using the authority. For the purpose of this cost analysis, the assumed average salary rate of Federal employees performing this work will be the rate in 2021 for GS-14, step 5, from the Washington, DC, locality pay table ($138,66 annual locality rate and $66.54 hourly locality rate). We assume that the total dollar value of labor, which includes wages, benefits, and overhead, is equal to 200 percent of the wage rate, resulting in an assumed labor cost of $133.08 per hour.

In order to comply with the regulatory changes in this interim final rule, affected agencies will need to review the rule and update their policies and procedures. We estimate that, in the first year following publication of the final rule, this will require an average of 250 hours of work by employees with an average hourly cost of $133.08. This would result in estimated costs in that first year of implementation of about $33,270 per agency, and about $2,661,600 governmentwide. We do not believe this rule will substantially increase the ongoing administrative costs to agencies, including the administrative costs of administering the program and hiring and training new staff.

Benefits

This authority will allow agencies to use strategic recruiting to hire recent college graduates to fill professional and administrative positions at the GS-11 level and below. When using the authority agencies will have additional flexibility in how college graduates are hired. Federal agencies will determine recruitment sources and processes for the solicitation of applications and will be held responsible for merit-based selections. This authority—when combined with agencies strategic recruitment plans—may help agencies better recruit to fill mission critical occupations.

Executive Order 12866

Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). In accordance with the provisions of Executive Order 12866, this rule was reviewed by the Office of Management and Budget as a significant, but not economically significant rule.

Regulatory Flexibility Act

The Director of the Office of Personnel Management certifies that this rule will not have a significant economic impact on a substantial number of small entities.

Federalism

We have examined this rule in accordance with Executive Order 13132, Federalism, and have determined that this rule will not have any negative impact on the rights, roles and responsibilities of State, local, or tribal governments.

Civil Justice Reform

This regulation meets the applicable standard set forth in Executive Order 12988.

Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

Congressional Review Act

Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (known as the Congressional Review Act or CRA) (5 U.S.C. 801 et seq. ) requires rules to be submitted to Congress before taking effect. OPM will submit to Congress and the Comptroller General of the United States a report regarding the issuance of this rule before its effective date, as required by 5 U.S.C. 801. The Office of Information and Regulatory Affairs in the Office of Management and Budget has determined that this rule is not a major rule as defined by the CRA, 5 U.S.C. 804.

Paperwork Reduction Act (44 U.S.C. 3501-3521)

This rule does not impose any new reporting or record-keeping requirements subject to the Paperwork Reduction Act.

List of Subjects in 5 CFR Part 315

• Government employees

Office of Personnel Management.

Alexys Stanley,

Regulatory Affairs Analyst.

Accordingly, OPM is amending parts 315 and 330 of title 5, Code of Federal Regulations, as follows:

PART 315—CAREER AND CAREER CONDITIONAL EMPLOYMENT

1. The authority citation for part 315 is revised to read as follows:

Authority: 5 U.S.C. 1302, 3301, and 3302; E.O. 10577, 3 CFR, 1954-1958 Comp. p. 218, unless otherwise noted; and E.O. 13162. Secs. 315.601 and 315.609 also issued under 22 U.S.C. 3651 and 3652. Secs. 315.602 and 315.604 also issued under 5 U.S.C. 1104. Sec. 315.603 also issued under 5 U.S.C. 8151. Sec. 315.605 also issued under E.O. 12034, 3 CFR, 1978 Comp. p.111. Sec. 315.606 also issued under E.O. 11219, 3 CFR, 1964-1965 Comp. p. 303. Sec. 315.607 also issued under 22 U.S.C. 2560. Sec. 315.608 also issued under E.O. 12721, 3 CFR, 1990 Comp. p. 293. Sec. 315.610 also issued under 5 U.S.C. 3304(c). Sec. 315.611 also issued under 5 U.S.C. 3304(f). Sec. 315.612 also under E.O. 13473. Sec 315.613 also issued under Pub. L. 114-47, 2(a) (Aug. 7, 2015), amended by Pub. L. 114-328, 1135 (Dec. 23, 2016), as codified at 5 U.S.C. 9602. Sec. 315.614 also is issued under 5 U.S.C. 3115. Sec. 315.708 also issued under E.O. 13318, 3 CFR, 2004 Comp. p. 265. Sec. 315.710 also issued under E.O. 12596, 3 CFR, 1978 Comp. p. 264.

Subpart F—Career or Career-Conditional Appointment Under Special Authorities

2. Add § 315.614 to read as follows:

§ 315.614

Hiring Authority for College Graduates.

(a) Appointment authority. In accordance with the provisions of this section, an agency may appoint noncompetitively an eligible and qualified individual to a position classified in a professional or administrative occupational category at the general schedule (GS) 11 level (or equivalent) or below, without regard to the provisions of 5 U.S.C. 3309 through 3319 and 3330.

(b) Eligibility. An eligible college graduate is defined as an individual who:

(1) Has received a baccalaureate or graduate degree from an institution of higher education as defined in 20 U.S.C. 1001(a); and

(i) Has submitted an application for the position being filled under this authority (using the date on which the application is received by the hiring agency as the date of submission).

(ii) Not later than two years after the date on which the individual received their degree described in paragraph (b)(1) introductory text of this section; or

(iii) in the case of an individual who has completed a period of not less than four years of intervening obligated service in a uniformed service, not later than two years after the date on which the individual was released or discharged from that uniformed service.

(2) Meets the minimum qualification standards prescribed or approved by OPM for the position to which the individual is being appointed.

(c) Qualifications. Agencies must evaluate eligible college graduates using the OPM-prescribed qualification standard, or an OPM-approved agency-specific minimum qualification standard, for the position being filled.

(d) Classification. An agency may make an initial appointment of an eligible and qualified individual to any position classified according to OPM classification standards in a professional or administrative occupational series at the GS-11 level (or equivalent) or below, including positions with promotion potential beyond the GS-11.

(e) Public notice and advertising. An agency must adhere to merit system principles, and thus must publicly advertise the position in a manner that endeavors to reach qualified individuals from all segments of society, including notifying OPM, in accordance with 5 U.S.C. 3327(b), before filling a position under this authority. To meet this requirement, an agency must display information about the position to be filled on its home page (that is accessible to the general public). An agency may, but is not required to, use www.USAJOBS.gov for this purpose. Alternatively, an agency may either provide an actual job announcement on its public-facing web page (home page) or provide a link to the job announcement on its public-facing homepage. The agency should consider whether additional recruitment and advertisement activities are necessary or appropriate to further merit system principles. If USAJOBS is not used to advertise the position, the agency must satisfy the requirements of 5 U.S.C. 3327(b) by providing OPM information about the position in the same format it usually would when posting a position on USAJOBS. A job announcement must include, at a minimum, the following information:

(1) The position title, series, grade level;

(2) The geographic location where the position will be filled;

(3) The starting salary of the position;

(4) The minimum qualifications of the position;

(5) Whether the position has promotion protentional to higher grade levels;

(6) Any other relevant information about the position such as telework opportunities, recruitment incentives, etc.;

(7) Specific information instructing applicants on how to apply;

(8) Equal employment opportunity statement (Agencies may use the recommended equal employment opportunity statement located on OPM's USAJOBS website.); and

(9) Reasonable accommodation statement.

(f) Appointment type. College graduates are appointed to career or career-conditional permanent positions in the competitive service.

(g) Acquisition of competitive status. A person appointed under this section acquires competitive status upon completion of probationary period in accordance with the provisions of subpart H of this part.

(h) Tenure upon appointment. A person appointed under paragraph (a) of this section becomes a career-conditional employee unless the appointee has already satisfied the requirements for career tenure or is exempt from the service requirement pursuant to § 315.201.

(i) Numerical limit on the number of appointments. (1) Except as provided in paragraph (i)(2) of this section, the total number of individuals that an agency may appoint under this authority during a fiscal year may not exceed 15 percent of the number of individuals that the agency appointed during the previous FY to a position in the competitive service classified in a professional or administrative occupational category, at the GS-11 level or below, or equivalent, under competitive examining procedures. An appointing agency may not count appointments made using direct hire authorities, non-competitive authorities, excepted service authorities, or selections under merit promotion authorities, when establishing the limit for a given fiscal year. In calculating this limitation, agencies must round up or down to the nearest whole number, if necessary, to eliminate a decimal place. Values ending in “.5” or more may be rounded up to the nearest whole number in determining an agency's cap limitation. Values ending in less than “.5” should be rounded down to the nearest whole number in determining an agency's cap limitation.

(2) During any given fiscal year, OPM may establish a lower limitation on the number of individuals that may be appointed under paragraph (i)(1) of this section based on any factor OPM considers appropriate. OPM shall notify agencies via the OPM website to communicate any modification to the numerical limitation.

(j) Reporting requirements. (1) Not later than September 30 of each of the first three fiscal years beginning in FY 2020 an agency that makes an appointment under these provisions must report to Congress and to OPM on the impact of this authority for the fiscal year for which the report is submitted. OPM will provide written guidance, at the time this rule is published, describing the means by which agencies should collect this information, the timing of such collections, and the groups as to which information should be collected. An agency's report must contain the following information:

(i) The total number of individuals appointed by the agency under this authority by position title, series, grade, and geographic location;

(ii) The number of individuals appointed under this authority by the items identified in 5 U.S.C. 3115(g), and in OPM guidance;

(iii) The number of veterans appointed, as defined in 5 U.S.C. 2108;

(iv) Any numerical limitation established in paragraph (i) of this section;

(v) Recruitment sources, outreach, and recruitment activities used to fill positions;

(vi) The total number of individuals appointed by the agency during the applicable fiscal year to a position in the competitive service classified in a professional or administrative occupational category at the GS-11 level, or an equivalent level, or below;

(vii) The number of individuals appointed under the authority that have been separated to show a break down between involuntary and voluntary separations as well as the reasons for each type of separation;

(viii) Information on difficulties encountered when using the authority;

(2) OPM may request additional information from agencies on their use of this authority. An agency must include in its report to Congress and OPM any additional information required by OPM under this subsection.

(k) Special provisions for Department of Defense. These regulations do not preclude the Secretary of Defense from exercising authority to appoint a recent graduate under section 1106 of Public Law 114-328. Additionally, these regulations do not apply to the Department of Defense during the period section 1106 of Public Law 114-328 is in effect.

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

3. 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; Section 330.609 also issued under 5 U.S.C. 3115; Subpart G also issued under 5 U.S.C. 8337(h) and 8456(b); Section 330.707 also issued under 5 U.S.C. 3115 and 3116.

Subpart F—Agency Career Transition Assistance Plan (CTAP) for Local Surplus and Displaced Employees

4. In § 330.609, add paragraph (ff) to read as follows:

§ 330.609

Exceptions to CTAP selection priority.

* * * * *

(ff) Make an appointment using the college graduate hiring authority under 5 U.S.C. 3115 and part 315 of this chapter.

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Subpart G—Interagency Career Transition Assistance Plan (ICTAP) for Displaced Employees

5. In § 330.707, add paragraph (x) to read as follows:

§ 330.707

Exceptions to ICTAP selection priority.

* * * * *

(x) Make an appointment using the college graduate hiring authority under 5 U.S.C. 3115 and part 315 of this chapter.

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