[Federal Register Volume 71, Number 176 (Tuesday, September 12, 2006)]
[Rules and Regulations]
[Pages 53545-53546]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-15016]

Rules and Regulations
                                                Federal Register

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Federal Register / Vol. 71, No. 176 / Tuesday, September 12, 2006 / 
Rules and Regulations

[[Page 53545]]


5 CFR Part 337

RIN 3206-AK85

Examining System

AGENCY: Office of Personnel Management.

ACTION: Final rule.


SUMMARY: The Office of Personnel Management (OPM) is adopting as a 
final rule, without changes, an interim rule that amended 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 a shortage category under the Services 
Acquisition Reform Act of 2003.

DATES: This rule is effective October 12, 2006.

FOR FURTHER INFORMATION CONTACT: 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 [email protected].

SUPPLEMENTARY INFORMATION: On August 4, 2005, OPM published an interim 
rule at 70 FR 44847, to amend 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 section 433(g)(1)(A) of title 41, United States Code (U.S.C.).
    As background, this action implements section 1413 of Public Law 
108-136 which 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 41 U.S.C. 
    When determining the existence of a shortage of highly-qualified 
individuals, non-DoD 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 on file for 
documentation and reporting purposes.
    When filling Federal acquisition positions, agencies must comply 
with public notice requirements as prescribed in 5 U.S.C. 3327 and 
3330, and 5 CFR part 330, subpart G. Agencies must post a job 
announcement on OPM's USAJOBS Web site when filling jobs under direct-
hire authority procedures to be in compliance with public notice 
    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.
    Section 1413(c) requires OPM 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.
    During the comment period, OPM received ten comments from the 
general public. Of the comments received, five comments claim that 
agencies are using outdated acquisition qualification standards and are 
applying the OPM qualification standards for acquisition positions 
incorrectly. These comments also included requests for assistance in 
obtaining an acquisition position in the Federal Government. Under 
direct-hire authority, agencies are required to use the approved 
qualification standards in OPM's Operating Manual: Qualification 
Standards for General Schedule Positions which is located at http://www.opm.gov/qualifications/index.asp. It is the responsibility of each 
agency to ensure that the proper qualification standard is applied and 
individuals who are appointed under direct-hire authority meet these 
qualifications. We did not make any changes to the interim regulation 
based on these comments.
    OPM was commended by an individual for granting direct-hire 
authority for Federal acquisition positions to agencies. The same 
individual stated a concern that agencies will use this authority to 
bypass and ignore veterans' preference eligibles. The Chief Human 
Capital Officers Act of 2002 (Pub. L. 107-296; 116 Stat. 2290), gives 
direct-hire authority to agencies to appoint individuals, without 
regard to the veterans' preference provisions of 5 U.S.C. 3309-3318, 
when OPM determines there is a severe shortage of candidates or 
critical hiring need. The Services Acquisition Reform Act gives direct-
hire authority to non-DoD agencies for acquisition positions provided 
they meet the criteria in 5 CFR 337.204. We did not make any changes to 
the interim regulation based on this comment.
    A comment was received asking where an individual can find an 
acquisition position covered under direct-hire authority. The interim 
regulation follows the same rules as other direct-hire authorities 
prescribed in 5 CFR part 337, subpart B. Agencies are required to 
announce their positions on OPM's Governmentwide list of vacant 
positions at http://www.usajobs.opm.gov. This requirement is clearly 
stated in 5 CFR 337.203, Public notice requirements. We did not make 
any changes to the interim regulation based on this comment.
    One commenter requested a list of agencies that are hiring for 
Federal acquisition positions which OPM has deemed a shortage category 
under the Services Acquisition Reform Act. The purpose of the interim 
regulation was to amend OPM's regulation to allow non-DoD agencies to 
determine on their own whether a shortage of highly-qualified 
individuals exists for Federal acquisition positions covered under 41 
U.S.C. 433(g)(1)(A). We did not adopt the suggestion to develop a list 
of agencies with Federal acquisition direct-hire authority. It is 
outside the scope of this regulation. However, information on OPM-
approved Governmentwide direct-hire authorities can be obtained by 
visiting OPM's Web site at http://www.opm.gov/employ/direct_hire/index.asp.

[[Page 53546]]

    One commenter commended OPM for allowing non-DoD agencies to 
determine their own direct-hire authority for Federal acquisition 
positions because it reduces the red tape in the hiring process. 
However, the commenter suggested different assessment methods and tools 
for hiring good individuals for acquisition positions. We did not adopt 
this suggestion. It is outside the scope of this regulation.
    The last comment did not involve acquisition positions; therefore, 
it is outside the scope of this amendment.
    We are therefore adopting the interim regulation as a final 
regulation without changes.

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 

List of Subjects in 5 CFR Part 337

    Government employees.

Office of Personnel Management.
Linda M. Springer,

Accordingly, the interim rule amending 5 CFR part 337, which was 
published at 70 FR 44847 on August 4, 2005, is adopted as a final rule 
without changes.

 [FR Doc. E6-15016 Filed 9-11-06; 8:45 am]