[Federal Register Volume 83, Number 209 (Monday, October 29, 2018)]
[Proposed Rules]
[Pages 54266-54268]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-23340]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
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 

  Federal Register / Vol. 83, No. 209 / Monday, October 29, 2018 / 
Proposed Rules  

[[Page 54266]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 337

RIN 3206-AN65


Examining System

AGENCY: U.S. Office of Personnel Management.

ACTION: Proposed rule.

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SUMMARY: The U.S. Office of Personnel Management (OPM) is issuing a 
proposed regulation to revise its direct-hire authority (DHA) 
regulations. The revision is necessary to implement Executive Order 
(E.O.) 13833 titled, ``Enhancing the Effectiveness of Agency Chief 
Information Officers'' which requires OPM to issue proposed regulations 
delegating to the head of a covered agency authority necessary to 
determine whether there is a severe shortage of candidates or a 
critical hiring need for information technology (IT) positions under 
certain conditions, sufficient to justify a DHA. The intended effect of 
this change is to enhance the Government's ability to recruit needed IT 
professionals.

DATES: OPM must receive comments on or before December 28, 2018.

ADDRESSES: You may submit comments, identified by docket number and/or 
Regulatory Information Number (RIN) and title, by any of the following 
methods:
     Federal Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Ms. Kimberly A. Holden, Deputy Associate Director 
for Talent Acquisition and Workforce Shaping, U.S. Office of Personnel 
Management, Room 6500-AJ, 1900 E Street NW, Washington, DC 20415-9700; 
email at [email protected]; or fax at (202) 606-4430.
    All submissions received must include the agency name and docket 
number or RIN for this document. The general policy for comments and 
other submissions from members of the public is to make these 
submissions available for public viewing at http://www.regulations.gov 
as they are received without change, including any personal identifiers 
or contact information.

FOR FURTHER INFORMATION CONTACT: Darlene Phelps at (202) 606-0960, by 
fax at (202) 606-4430, TDD at (202) 418-3134, or by email at 
[email protected].

SUPPLEMENTARY INFORMATION: On May 15, 2018, the President signed E.O. 
13833, titled, ``Enhancing the Effectiveness of Agency Chief 
Information Officers'' (83 FR 23345). The E.O. is aimed at modernizing 
the Federal Government's information technology infrastructure and 
improving the delivery of digital services and the management, 
acquisition, and oversight of Federal IT. Section 9 of the E.O. directs 
OPM to propose regulations pursuant to which OPM may delegate to the 
heads of certain agencies (other than the Secretary of Defense) 
authority to determine, under regulations prescribed by OPM, whether a 
severe shortage of candidates (or, for the U.S. Department of Veterans 
Affairs (VA) a severe shortage of highly qualified candidates) or a 
critical hiring need exists for positions in the Information Technology 
Management (IT) Series, general schedule (GS)-2210 or equivalent, for 
purposes of an entitlement to a direct hire authority (DHA). The 
agencies covered by the E.O. are those listed in 31 U.S.C. 901(b), or 
independent regulatory agencies defined in 44 U.S.C. 3502(5).
    OPM is proposing to amend its regulations to delegate to the heads 
of covered agencies the authority to determine whether a severe 
shortage of candidates (VA need only determine the existence of a 
severe shortage of highly qualified candidates) or a critical hiring 
need exists for IT positions. The current rules do not provide for a 
delegation of authority in relation to direct hire authorities; only 
OPM may make these determinations. When determining the existence of a 
severe shortage of qualified candidates for IT positions, an agency 
exercising such a delegation would be required to justify its 
determination using the supporting evidence prescribed in section 
337.204(b) of title 5, Code of Federal Regulations (CFR). When 
determining the presence of a critical hiring need, an agency 
exercising such a delegation would be required to justify its 
determination in accordance with the criteria prescribed in 5 CFR 
337.205(b). OPM has further developed these criteria in Direct Hire 
templates available at https://www.opm.gov/policy-data-oversight/hiring-information/direct-hire-authority/templates.pdf. Agency heads 
would be expected to make use of these templates in making their 
findings. The supporting evidence used for either determination would 
be required to be kept in a file for documentation and auditing 
purposes in accordance with 5 CFR 337.206.
    Under the current DHA provisions at 5 U.S.C. 3304(a)(3) and 5 CFR 
part 337 subpart B, OPM determines the existence of a severe shortage 
of candidates or a critical hiring need and may grant DHA to one or 
more agencies pursuant to this determination. Thus OPM is responsible 
for making both a determination that the DHA is warranted and for 
granting the actual DHA. While E.O. 13833 authorizes OPM to submit a 
proposed regulation that would sever these actions for IT positions (in 
other words, permit the heads of agencies to make the determination, 
but preserve OPM's responsibility for granting DHA based on an agency's 
determination), OPM is choosing to delegate to agency heads its 
authority to actually issue the DHA under 5 U.S.C. 1104(a)(2) in the 
circumstances specified. OPM will, however, maintain oversight of the 
use of this authority as provided in 5 U.S.C. 1104(b). Therefore, after 
the determination is made, the deciding agency is required to provide 
the determination and a description of the supporting evidence to OPM. 
OPM may request access to the underlying documentation at any time, and 
may require corrective action in accordance with 5 U.S.C. 1104(c) and 
section 337.206 of the regulation.
    The proposed rules contemplate that, after an agency head has 
authorized DHA under these rules, the agency could use this authority 
to hire needed individuals for initial appointments lasting longer than 
1 year, but not to exceed 4 years. The hiring agency, at its 
discretion, could extend the initial appointment up to an additional 4 
years. No individual hired under these provisions could serve in excess 
of 8

[[Page 54267]]

years at the same agency. No individual hired under these provisions 
could be transferred to positions that are not IT positions. An agency 
would be required to use this authority in accordance with the 
provisions of 5 CFR part 337 subpart B and in the same manner it would 
for filling other positions under DHA. Generally speaking, this would 
entail providing applicants with public notice consistent with the 
provisions of 5 CFR 337.203, assessing applicants to determine whether 
they have the level of proficiency required to perform the duties of 
the position being filled, and giving selection priority to qualified 
applicants eligible under the agency's Reemployment Priority List 
(RPL), Career Transition Assistance Plan (CTAP), and the Interagency 
Career Transition Assistance Plan (ICTAP) in accordance with 5 CFR part 
330 subparts B, F, and G before selecting other qualified applicants. 
An agency would not be able to assess applicants in order to make more 
meaningful or relative distinctions as to the quality of the applicant 
pool; i.e., an agency could not rate and rank applicants and select 
them based on a numerical rating or categorize and select them in terms 
of ``good, better, best'' or similar quality designations. Applicants 
who met the required proficiency level would be deemed to be equally 
qualified for these purposes. Each agency would then be expected to 
select qualified applicants in the order in which their applications 
were received and processed.
    OPM is revising its regulations to:
    a. Add new subsections, 337.204(d), and 337.205(b) titled, 
``Information Technology Positions'' to propose implementing rules with 
respect to covered agencies, agency authority, conditions for using 
these provisions, and duration of appointments.

E.O. 12866, Regulatory Review

    This rule has been reviewed by the Office of Management and Budget 
in accordance with Executive Order 12866.

Regulatory Flexibility Act

    I certify that this regulation will not have a significant impact 
on a substantial number of small entities because it applies only to 
Federal agencies and employees.

E.O. 13563 and E.O. 12866, Regulatory Review

    Executive Orders 13563 and 12866 direct 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). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This rule has been designated a ``significant regulatory 
action,'' under Executive Order 12866.

Executive Order 13771: Reducing Regulation and Controlling Regulatory 
Costs

    This proposed rule is not expected to be subject to the 
requirements of E.O. 13771 (82 FR 9339, February 3, 2017) because this 
proposed rule is expected to be related to agency organization, 
management, or personnel

E.O. 13132, Federalism

    This regulation will not have substantial direct effects on the 
States, on the relationship between the National Government and the 
States, or on distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 13132, it is determined that this rule does not have sufficient 
federalism implications to warrant preparation of a Federalism 
Assessment.

E.O. 12988, Civil Justice Reform

    This regulation meets the applicable standard set forth in section 
3(a) and (b)(2) of Executive Order 12988.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local or 
tribal governments of more than $100 million annually. Thus, no written 
assessment of unfunded mandates is required.

Congressional Review Act

    This action pertains to agency management, personnel and 
organization and does not substantially affect the rights or 
obligations of nonagency parties and, accordingly, is not a ``rule'' as 
that term is used by the Congressional Review Act (Subtitle E of the 
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)). 
Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.

Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35)

    This proposed regulatory action will not impose any additional 
reporting or recordkeeping requirements under the Paperwork Reduction 
Act.

List of Subjects in 5 CFR Part 337

    Government employees.


    U.S. Office of Personnel Management.
Alexys Stanley,
Regulatory Affairs Analyst.
    Accordingly, we propose to amend 5 CFR part 337 as follows:

PART 337--EXAMINING SYSTEM

0
1. Revise the authority citation for part 337 to read as follows:

    Authority:  5 U.S.C. 1104(a), 1302, 2302, 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; 116 Stat. 2135, 2290; 
117 Stat 1392, 1665; and E.O. 13833.

Subpart B--Direct Hire Authority

0
2. Add paragraph (d) to Sec.  337.204 to read as follows:


Sec.  337.204  Severe shortage of candidates.

* * * * *
    (d) Information Technology (IT) positions. (1) The head of a 
covered agency, as defined in paragraph (d)(2) of this section, may 
determine whether a severe shortage of candidates exists at that agency 
for any position in the information technology management series, 
general schedule (GS)-2210 or equivalent. In making such a 
determination, a covered agency must adhere to and use the supporting 
evidence prescribed in 5 CFR 337.204(b)(1)-(8). For purposes of 
paragraph (b)(5) of this section, the U.S. Department of Veterans 
Affairs (VA) need only determine whether a severe shortage of highly 
qualified candidates exists. In addition, a covered agency must 
maintain a file of the supporting evidence for documentation and 
reporting purposes. Upon determination of such a finding, an agency 
head may approve a direct hire authority for covered positions within 
the agency.
    (2) Covered agency. A covered agency is an entity listed in 31 
U.S.C. 901(b) (except the Department of Defense), or an independent 
regulatory agency defined in 44 U.S.C. 3502(5).
    (3) Notification to the U.S. Office of Personnel Management (OPM). 
Once the head of a covered agency affirmatively determines the presence 
of a severe shortage and the direct hire authority is approved by the 
agency head, he or she must notify OPM within 10 business days. Such 
notification must include a description of the supporting evidence 
relied upon in making the determination.
    (4) Using this authority. A covered agency must adhere to all 
provisions of subpart B of this part.

[[Page 54268]]

    (5) Length of appointments. A covered agency may use this authority 
to appoint individuals for a period of more than 1 year, but not more 
than 4 years.
    (i) A covered agency may extend any appointment under this 
authority for up to 4 additional years, if the direct hire authority 
remains in effect.
    (ii) No individual may serve more than 8 years on an appointment 
made under these provisions for information technology positions.
    (iii) No individual hired under these provisions may be transferred 
to positions that are not IT positions.
0
3. Add paragraph (c) to Sec.  337.205 to read as follows:


Sec.  337.205  Critical hiring needs.

* * * * *
    (c) Information Technology (IT) positions. (1) The head of a 
covered agency, as defined in paragraph (c)(2) of this section, may 
determine whether a critical hiring need exists for any position in the 
information technology management series, general schedule (GS)-2210 or 
equivalent. In making such a determination, a covered agency must 
adhere to and use the supporting evidence criteria prescribed in 
paragraphs (b)(1)-(4) of this section. In addition, a covered agency 
must maintain a file of the supporting evidence for documentation and 
reporting purposes. Upon determination of such a finding, an agency 
head may approve a direct hire authority for covered positions within 
the agency.
    (2) Covered agency. A covered agency is an entity listed in 31 
U.S.C. 901(b) (excluding the Department of Defense), or an independent 
regulatory agency defined in 44 U.S.C. 3502(5).
    (3) Notification to the U.S. Office of Personnel Management (OPM). 
Once the head of a covered agency affirmatively determines the presence 
of a critical hiring need and the direct hire authority is approved by 
the agency head, he or she must notify OPM within 10 business days. 
Such notification must include a description of the supporting evidence 
relied upon in making the determination.
    (4) Using this authority. A covered agency must adhere to all 
provisions of subpart B of this part.
    (5) Length of appointments. A covered agency may use this authority 
to appoint individuals for a period of more than 1 year, but not more 
than 4 years, if the direct hire authority remains in effect.
    (i) A covered agency may extend any appointment under this 
authority for up to 4 additional years.
    (ii) No individual may serve more than 8 years on an appointment 
made under these provisions for information technology positions.
    (iii) No individual hired under these provisions may be transferred 
to positions that are not IT positions.

[FR Doc. 2018-23340 Filed 10-26-18; 8:45 am]
 BILLING CODE 6325-39-P