05-15259. Examining System

AGENCY:

Office of Personnel Management.

ACTION:

Interim rule with request for comments.

SUMMARY:

The Office of Personnel Management (OPM) is issuing an interim regulation to amend its direct-hire authority regulations to allow non-Department of Defense agencies to recruit and appoint highly qualified individuals for certain Federal acquisition positions deemed as a shortage category under the Services Acquisition Reform Act.

DATES:

These regulations are effective August 4, 2005. We will consider comments received on or before October 3, 2005.

ADDRESSES:

Send, deliver or fax comments to Mark Doboga, Deputy Associate Director for Talent and Capacity Policy, U.S. Office of Personnel Management, Room 6551, 1900 E Street, NW., Washington, DC 20415-9700; e-mail at [e-mail]; or fax at [phone].

Comments may also be sent through the Federal eRulemaking Portal at: http://www.regulations.gov. All submissions received through the Portal must include the agency name and docket number or Regulation Identifier Number (RIN) for this rulemaking.

FOR FURTHER INFORMATION CONTACT:

Ms. Linda Watson by telephone at [phone]; by fax at [phone]; by TTY at [phone]; or by e-mail at [e-mail].

SUPPLEMENTARY INFORMATION:

On June 15, 2004, OPM published final regulations at 69 FR 33271, to implement provisions of the Chief Human Capital Officers Act of 2002 (Act), Public Law 107-296. This Act provides Federal agencies with a number of human resources flexibilities to enhance their recruitment and hiring programs. These flexibilities include direct-hire authority and alternative (that is, category) rating and selection procedures. Under direct-hire authority, agencies may recruit and appoint candidates to positions when OPM determines there is a severe shortage of candidates or critical hiring need.

Section 1413 of Public Law 108-136 allows department and agency heads (other than the Secretary of Defense) to determine under regulations prescribed by OPM, when certain Federal acquisition positions are shortage category positions for purposes of direct-hire authority. The Federal acquisition positions covered by section 1413 are listed in title 41, United States Code (U.S.C.) 433(g)(1)(A).

OPM is amending its regulation to allow non-Department of Defense (DoD) agencies to determine whether a shortage of highly qualified individuals exists for Federal acquisition positions covered under title 41, U.S.C. 433(g)(1)(A). When determining the existence of a shortage of highly qualified individuals, agencies are required to use the supporting evidence prescribed in section 337.204(b) of title 5, Code of Federal Regulations (CFR). The supporting evidence must be kept in a file for documentation and reporting purposes.

Agencies must comply with public notice requirements as prescribed in 5 U.S.C. 3327 and 3330, and 5 CFR part 330, subpart G, with respect to these positions.

The direct-hire authority for Federal acquisition positions under the provisions of section 1413 of Public Law 108-136 will terminate on September 30, 2007. Agencies may not appoint any individual to a position of employment using this authority after September 30, 2007.

In accordance with section 1413(c), OPM is required to submit to Congress a report on the implementation and effectiveness of the direct-hire authority in attracting employees with unusually high qualifications to the acquisition workforce and to make any appropriate recommendations regarding whether to extend the authority. Non-DoD agencies are required to submit a report to OPM on their implementation and use of section 1413 of Public Law 108-136 by December 31, 2006.

E.O. 12866, Regulatory Review

This 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 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 will only apply to Federal agencies and employees.

List of Subjects in 5 CFR Part 337

• Government employees

U.S. Office of Personnel Management.

Linda M. Springer,

Director.

Accordingly, OPM is amending 5 CFR part 337 as follows:

PART 337—EXAMINING SYSTEM

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

Authority: 5 U.S.C. 1104(a)(2), 1302, 2302, 3301, 3302, 3304, 3319, 5364; E.O. 10577, 3 CFR 1954-1958 Comp., p. 218; 33 FR 12423, Sept. 4, 1968; 45 FR 18365, Mar. 21, 1980; 116 Stat. 2135, 2290; and 117 Stat. 1392, 1665.

Subpart B—Direct-Hire Authority

2. Add new paragraph (c) to § 337.204 to read as follows:

§ 337.204

Severe shortage of candidates.

* * * * *

(c) A department or agency head (other than the Secretary of Defense) may determine, pursuant to section 1413 of Public Law 108-136, that a shortage of highly qualified candidates exists for certain Federal acquisition positions (covered under section 433(g)(1)(A) of title 41, United States Code). To make such a determination, the deciding agency official must use the supporting evidence prescribed in 5 CFR 337.204(b)(1)-(8) and must maintain a file of the supporting evidence for documentation and reporting purposes.

3. Add new paragraphs (d) and (e) to § 337.206 to read as follows:

§ 337.206

Terminations, modifications, extensions, and reporting.

* * * * *

(d) No new appointments may be made under the provisions of section 1413 of Public Law 108-136 after September 30, 2007; and

(e) Those departments and agencies, excluding the Department of Defense, that use the direct-hire authority provided in § 337.204(c) must submit to OPM a report on their implementation of section 1413 of Public Law 108-136 no later than December 31, 2006. The report must include:

(1) A description of how the agency's implementation satisfied each of the elements laid out in §§ 337.203 and 337.204(b)(1)-(8), as applicable;

(2) An assessment of the effectiveness of the authority in attracting employees with unusually high qualifications to the acquisition workforce; and

(3) Any recommendations on whether the authority should be extended.