Unknown. Interim rule with request for comments

7,061 words·~32 min read·/register/2003/06/13/03-14971

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

--- schema: federal-register doc_type: fedreg source_file: FR-2003-06-13.xml --- 68 114 Friday, June 13, 2003 Contents Agriculture Agriculture Department See Animal and Plant Health Inspection Service See Commodity Credit Corporation See Farm Service Agency See Federal Crop Insurance Corporation See Food and Nutrition Service See Forest Service See Grain Inspection, Packers and Stockyards Administration See Rural Business-Cooperative Service See Rural Housing Service See Rural Utilities Service Air Force Air Force Department NOTICES Agency information collection activities; proposals, submissions, and approvals, 35391 03-14905 Animal Animal and Plant Health Inspection Service RULES Viruses, serums, toxins, etc.:

Biological products; residual free formaldehyde content determination; standard requirements, 35282-35283 03-14957 Army Army Department See Engineers Corps NOTICES Patent licenses; non-exclusive, exclusive, or partially exclusive: Amine azide propellant, 35391 03-15017 Controlled debonding of elements using shape memory alloy actuators; article and method, 35391 03-15015 Easy access dental field operating and treatment system having over-the-patient delivery, 35391-35392 03-15019 Enzymatic polymerization of anilines or phenols around a template, 35392 03-15014 Microfluidized leishmania lystate and methods of using and making, 35392 03-15020 Shaped charge explosive device and method of making same, 35392 03-15016 Spread spectrum image steganography, 35392 03-15018 Blind Blind or Severely Disabled, Committee for Purchase From People Who Are See Committee for Purchase From People Who Are Blind or Severely Disabled Centers Centers for Disease Control and Prevention NOTICES Agency information collection activities; proposals, submissions, and approvals, 35416-35418 03-14911 03-14912 Meetings:

Disease, Disability, and Injury Prevention and Control Special Emphasis Panels, 35418 03-14927 Injury Prevention and Control Advisory Committee, 35418-35419 03-14925 National Institute for Occupational Safety and Health— Safety and Occupational Health Study Section, 35419 03-14926 Civil Civil Rights Commission NOTICES Meetings; State advisory committees: Alabama, Arkansas, Louisiana, and Mississippi, 35380-35381 03-14944 Florida, Georgia, Kentucky, North Carolina, South Carolina, and Tennessee, 35381 03-14946 Pennsylvania, 35381 03-14945 Coast Guard Coast Guard RULES Drawbridge operations:

Florida, 35296-35297 03-14987 Commerce Commerce Department See Industry and Security Bureau See International Trade Administration See National Oceanic and Atmospheric Administration Committee for Purchase Committee for Purchase From People Who Are Blind or Severely Disabled NOTICES Procurement list; additions and deletions, 35379-35380 03-15022 03-15023 CITA Committee for the Implementation of Textile Agreements NOTICES Cotton, wool, and man-made textiles: Macau, 35388 03-14962 Macedonia, 35388-35389 03-14965 Malaysia, 35389-35390 03-14963 Textile and apparel categories:

African Growth and Opportunity Act; short supply requests— Light- and medium-weight dyed warp pile cotton velvet for use in apparel articles, 35390-35391 03-14964 Commodity Commodity Credit Corporation NOTICES Grants and cooperative agreements; availability, etc.: Grassland Reserve Program, 35360-35363 03-14977 Comptroller Comptroller of the Currency RULES Debt cancellation contracts and debt suspension agreements; national bank standards; compliance date change, 35283-35285 03-14972 Defense Defense Department See Air Force Department See Army Department See Engineers Corps See Navy Department Drug Drug Enforcement Administration RULES Schedules of controlled substances:

Anabolic steriod products Suspension, 35293-35294 03-14901 Education Education Department NOTICES Grants and cooperative agreements; availability, etc.: Postsecondary education— Strengthening Institutions, American Indian Tribally Controlled Colleges and Universities, and other programs, 35393-35394 03-14951 Employment Employment and Training Administration NOTICES Reports and guidance documents; availability, etc.: Workforce security programs; unemployment compensation and public employment services;

Unemployment Insurance Program Letters interpreting Federal law, 35429-35444 03-14857 Employment Employment Standards Administration NOTICES Minimum wages for Federal and federally-assisted construction; general wage determination decisions, 35444-35454 03-12713 Energy Energy Department See Federal Energy Regulatory Commission See Western Area Power Administration Engineers Engineers Corps NOTICES Environmental statements; notice of intent: Woodbridge River Basin, Middlesex County, NJ; flood control and aquatic ecosystem restoration study, 35392-35393 03-15021 EPA Environmental Protection Agency RULES Air programs; approval and promulgation;

State plans for designated facilities and pollutants: Various States, 35299-35303 03-15007 Pesticides; tolerances in food, animal feeds, and raw agricultural commodities: Imidacloprid, 35303-35315 03-14880 Toxic substances: Significant new uses— Burkholderia cepacia complex, 35315-35320 03-15010 PROPOSED RULES Air programs; approval and promulgation; State plans for designated facilities and pollutants: Various States, 35348-35349 03-15008 Pesticides; tolerances in food, animal feeds, and raw agricultural commodities:

Humates, 35349-35354 03-14881 NOTICES Environmental statements; availability, etc.: Agency statements— Comment availability, 35407-35408 03-15012 Weekly receipts, 35406-35407 03-15011 Water pollution control: National Pollutant Discharge Elimination System— Colorado; Federal facility small municipal separate storm sewer systems; storm water discharges; general permit, 35408-35409 03-15009 Farm Farm Service Agency PROPOSED RULES Program regulations: Value-added producer grants and agricultural innovation centers, 35321-35334 03-14840 FAA Federal Aviation Administration RULES Air traffic operating and flight rules, etc.:

Iraq; flights within territory and airspace; prohibition removed, 35523-35524 03-14973 Airworthiness directives: Pratt & Whitney, 35286-35287 03-14844 Airworthiness standards: Special conditions— Raytheon Aircraft Co. HS 125 Series 700A and 700B airplanes; correction, 35285 03-15000 Class E airspace, 03-14997 03-14998 35287-35288 03-14999 Commercial space transportation; licensing regulations; technical amendments, 35289-35290 03-14995 Federal airways and jet routes, 35288-35289 03-14996 PROPOSED RULES Airworthiness standards:

Special conditions— Boeing Model 777 series airplanes, 35335-35345 03-14992 NOTICES Advisory circulars; availability, etc.: Reusuable software components, 35472 03-15001 Meetings: RTCA, Inc., 35473 03-15002 RTCA Program Management Committee, 35472-35473 03-15003 Reports and guidance documents; availability, etc.: Diesel Engine Installation; policy statement, 35473 03-14993 Multi-function displays; installation approval using Approved Model List Supplemental Type Certification Process; policy statement, 35473-35474 03-14994 FCC Federal Communications Commission NOTICES Common carrier services:

Telecommunications relay services— Consumer information and complaints; office or contact person requirement, 35409-35410 03-14930 Federal Crop Federal Crop Insurance Corporation NOTICES Grants and cooperative agreements; availability, etc.: Risk Management Education Commodity Partnerships and Crop Insurance Education in Targeted States, 35363-35372 03-14955 Risk management research partnerships, 35372-35376 03-14954 Federal Energy Federal Energy Regulatory Commission NOTICES Electric rate and corporate regulation filings:

FPL Energy Seabrook, LLC, et al., 35394-35395 03-14922 Midwest Independent Transmission System Operator, Inc., et al., 35395-35398 03-14923 Federal Reserve Federal Reserve System NOTICES Banks and bank holding companies: Change in bank control, 35410-35411 03-14909 Formations, acquisitions, and mergers, 35411 03-14908 Federal Retirement Federal Retirement Thrift Investment Board RULES Thrift Savings Plan: New record keeping system, implementation decisions, and addition of post-employment withdrawal methods; miscellaneous amendments, 35491-35521 03-14647 Food Food and Drug Administration RULES Human drugs:

Skin protectant products (OTC)— Astringent products; final monograph, 35290-35293 03-14818 PROPOSED RULES Human drugs: Skin protectant products (OTC)— Astringent products; final monograph, 35346-35348 03-14819 NOTICES Reports and guidance documents; availability, etc.: Juice processing; HACCP principles application; standardized training curriculum, 35420 03-14897 Food Food and Nutrition Service NOTICES Agency information collection activities; proposals, submissions, and approvals, 35376-35377 03-14956 Forest Forest Service NOTICES Environmental statements; notice of intent:

Nez Perce National Forest, ID, 35377-35379 03-14727 GAO General Accounting Office NOTICES Commercial activities performance (OMB Circular A-76): Bid protest regulations, etc., 35411-35413 03-14934 GSA General Services Administration NOTICES Environmental statements; notice of intent: Silver Spring, MD; Food and Drug Administration; campus expansion and new eastern access road, 35413-35414 03-15078 GIPSA Grain Inspection, Packers and Stockyards Administration RULES Fees: Official inspection and weighing services Correction, 35490 C3-13679 Health Health and Human Services Department See Centers for Disease Control and Prevention See Food and Drug Administration See Health Resources and Services Administration NOTICES Meetings:

Vital and Health Statistics National Committee, 35414 03-14943 Reports and guidance documents; availability, etc.: Cystic fibrosis; mucus and mucins in bronchoalveolar lavage fluids from infants; characterization; research protocol, 35414-35415 03-14941 Sleep mechanism in children; role of metabolism; research protocol, 35415-35416 03-14942 Health Health Resources and Services Administration NOTICES Meetings: Infant Mortality Advisory Committee, 35420-35421 03-14898 Homeland Homeland Security Department See Coast Guard RULES Organization, functions, and authority delegations:

Immigration powers and authority for officers and employees; Internal review process for standards for enforcement activities; revisions, 35273-35282 03-14931 NOTICES Meetings: Homeland Security Advisory Council, 35421 03-15089 Housing Housing and Urban Development Department NOTICES Agency information collection activities; proposals, submissions, and approvals, 35421-35422 03-14899 03-15028 Grants and cooperative agreements; availability, etc.: Facilities to assist homeless— Excess and surplus Federal property, 35422 03-14596 Meetings:

Manufactured Housing Consensus Committee; conference call, 35423 03-15029 Industry Industry and Security Bureau NOTICES Export transactions: Best practices for exporters/re-exporters and trade facilitation/freight forwarding companies regarding dual-use items transit, transshipment, and reexport Correction, 35381 03-15024 Interior Interior Department See Land Management Bureau IRS Internal Revenue Service NOTICES Agency information collection activities; proposals, submissions, and approvals, 35484-35485 03-15025 03-15026 International International Trade Administration NOTICES Antidumping:

Glycine from— China, 35382-35383 03-14978 Saccharin from— China, 35383 03-14980 Silicon metal from— China, 35383-35384 03-14979 Welded stainless steel pipe from— Taiwan, 35384-35385 03-14982 Antidumping and countervailing duties: Durum wheat and hard red spring wheat from— Canada, 35381-35382 03-14981 Grants and cooperative agreements; availability, etc.: International Buyer Program; domestic trade shows support (2005 FY), 35385-35386 03-15027 Justice Justice Department See Drug Enforcement Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 35427-35429 03-15004 03-15005 Labor Labor Department See Employment and Training Administration See Employment Standards Administration See Occupational Safety and Health Administration Land Land Management Bureau NOTICES Environmental statements; availability, etc.:

Horning Seed Orchard, OR; pest management program, 35423-35424 03-14285 Provolt and Sprague Seed Orchards, OR; pest management program, 35424-35425 03-14286 Southwest Oregon; Port-Orford-cedar management, 35425 03-15119 Tyrell Seed Orchard, OR; pest management program, 35426 03-14287 West Mojave Plan, CA, 35426-35427 03-14910 NASA National Aeronautics and Space Administration RULES Grant and Cooperative Agreement Handbook: Unsolicited proposals, 35290 03-14935 NOTICES Agency information collection activities; proposals, submissions, and approvals, 35455 03-14983 03-14984 Meetings:

Transformation activities and initiatives; forum between agency's senior management and company representatives, 35455-35456 03-14936 Patent licenses; non-exclusive, exclusive, or partially exclusive: Evergreen Performance & Compliance, Inc., 35456 03-14938 HyPerComp Engineerings, Inc., 35456 03-14940 Intellimotion, Inc., 35456 03-14939 Phoenix Systems International, Inc., 35456-35457 03-14937 National Highway National Highway Traffic Safety Administration PROPOSED RULES Motor vehicle safety standards:

Brake hoses Correction, 35354 03-14865 NOAA National Oceanic and Atmospheric Administration PROPOSED RULES Fishery conservation and management: West Coast States and Western Pacific fisheries— Pacific Coast groundfish, 35354-35359 03-15030 NOTICES Marine mammals: Commercial fishing operations; incidental taking— Atlantic Large Whale Take Reduction Plan, 35386-35388 03-15013 Navy Navy Department NOTICES Inventions, Government-owned; availability for licensing, 35393 03-14924 Patent licenses; non-exclusive, exclusive, or partially exclusive:

Star Cyroelectronics, 35393 03-14906 Nuclear Nuclear Regulatory Commission NOTICES Meetings: Nuclear Waste Advisory Committee, 35457 03-14959 Reports and guidance documents; availability, etc.: Panoramic and underwater irradiators authorized to possess greater than 370 TerraBecquerels of byproduct material in form of sealed sources, 35458-35462 03-14961 Occupational Occupational Safety and Health Administration NOTICES Meetings: Occupational Safety and Health National Advisory Committee, 35454-35455 03-14933 Pension Pension Benefit Guaranty Corporation RULES Single-employer plans:

Allocation of assets— Interest assumptions for valuing and paying benefits, 35294-35296 03-14952 NOTICES Employee Retirement Income Security Act: International Longshoremen's and Warehousemen's Union-Pacific Maritime Association Pension Plan; special withdrawal liability rules; approval, 35462-35466 03-14969 Multiemployer plans: Interest rates and assumptions, 35466 03-14953 Personnel Personnel Management Office RULES Employment: Homeland Security Act of 2002; implementation— Severe shortage of candidates and critical hiring needs;

Governmentwide human resources flexibilities (direct-hire authority, etc.), 35265-35270 03-14971 Retirement: Homeland Security Act of 2002— Voluntary early retirement, 35270-35273 03-14970 Postal Postal Service NOTICES Government Performance and Results Act: Five-year strategic plan (2004-2008); revision and update, 35467-35468 03-15066 Public Public Debt Bureau NOTICES Agency information collection activities; proposals, submissions, and approvals, 35485-35489 03-14913 03-14914 03-14921 Rural Rural Business-Cooperative Service PROPOSED RULES Program regulations:

Value-added producer grants and agricultural innovation centers, 35321-35334 03-14840 Rural Rural Housing Service PROPOSED RULES Program regulations: Value-added producer grants and agricultural innovation centers, 35321-35334 03-14840 RUS Rural Utilities Service PROPOSED RULES Program regulations: Value-added producer grants and agricultural innovation centers, 35321-35334 03-14840 SEC Securities and Exchange Commission NOTICES Agency information collection activities; proposals, submissions, and approvals, 35468-35469 03-14966 03-14967 Self-regulatory organizations; proposed rule changes:

American Stock Exchange LLC, 35469-35472 03-14968 SBA Small Business Administration RULES Small business size standards: Nonmanufacturer rule; waivers— Overhead fiber optic groundwire and ancillary hardware components, 35285 03-14297 PROPOSED RULES Small business size standards: Nonmanufacturer rule; waivers— Other ordnance and accessories manufacturing, 35334 03-14851 Small arms manufacturing, 35334-35335 03-14850 Surface Surface Transportation Board NOTICES Railroad operation, acquisition, construction, etc.:

Kansas City Southern et al., 35474-35480 03-14902 Textile Textile Agreements Implementation Committee See Committee for the Implementation of Textile Agreements Transportation Transportation Department See Federal Aviation Administration See National Highway Traffic Safety Administration See Surface Transportation Board Treasury Treasury Department See Comptroller of the Currency See Internal Revenue Service See Public Debt Bureau NOTICES Agency information collection activities; proposals, submissions, and approvals, 35480-35484 03-14903 03-14904 Veterans Veterans Affairs Department RULES Privacy Act; implementation, 35297-35299 03-14861 Western Western Area Power Administration NOTICES Power rate adjustments:

Loveland Area Projects, 35398-35402 03-14947 03-14948 Pick-Sloan Missouri Basin Program-Eastern Division, 35402-35406 03-14949 03-14950 Separate Parts In This Issue Part II Federal Retirement Thrift Investment Board, 35491-35521 03-14647 Part III Transportation Department, Federal Aviation Administration, 35523-35524 03-14973 Reader Aids Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.

To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions. 68 114 Friday, June 13, 2003 Rules and Regulations OFFICE OF PERSONNEL MANAGEMENT 5 CFR Parts 230, 301, 316, 333, 337, and 410 RIN 3206-AJ 99 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: Interim rule with request for comments. SUMMARY: The Office of Personnel Management

(OPM)is issuing interim regulations to implement certain Governmentwide human resources flexibilities contained in the Homeland Security Act of 2002. This regulation provides agencies with: increased flexibility in assessing applicants using alternative (category-based) rating and selection procedures; the ability to select qualified candidates for positions, including temporary and term positions, in the competitive service using direct-hire 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 in the use of academic degree training to address agency-specific human capital requirements and objectives. This interim regulation will also remove part 333 of title 5, Code of Federal Regulations, Recruitment and Selection for Temporary and Term Appointments Outside the Register, and all related references to this part, including the authority to appoint using temporary appointments pending establishment of a register (TAPER). DATES: These regulations are effective June 13, 2003. We will consider comments received on or before August 12, 2003. ADDRESSES: Send, deliver or fax written comments to Ms. Ellen E. Tunstall, 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 *employ@opm.gov* ; fax:

(202)606-2329. FOR FURTHER INFORMATION CONTACT: On alternative rating and selection procedures and direct-hire authority, Ms. Suzy Barker by telephone at

(202)606-0830, fax at

(202)606-2329 or by e-mail at *smbarker@opm.gov* . On emergency indefinite appointments, overseas employment, TAPER, and outside the register appointments, Ms. Diane Tyrrell by telephone at

(202)606-0830, fax at

(202)606-2329 or by e-mail at *dmtyrrel@opm.gov* . On 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. Barker, Ms. Tyrrell and Ms. Ponds may also be contacted by TTY at

(202)418-3134. SUPPLEMENTARY INFORMATION: On November 25, 2002, the President signed the Homeland Security Act of 2002 (Act), Public Law 107-296, into law. This 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. Direct-Hire Authority Title 5 U.S.C. 3304 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. The requirements and justification for the direct hire authorities are presented separately and distinct from each other in these interim regulations. We are soliciting comments on whether we should combine the requirements and justification for a severe shortage of candidates and critical hiring needs into a single section or keep them in separate sections as written. OPM may decide, on its own, 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 include relevant evidence, as described below, to support its request. 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. To demonstrate that a severe shortage of candidates exists for a position or group of positions, an agency must provide information showing that it is unable to identify candidates possessing the competencies required to perform the necessary duties of the position despite extensive recruitment, extended announcement periods, and the use, as applicable, of hiring flexibilities such as recruitment and relocation incentives. In determining whether there is a severe shortage of candidates for a position or group of positions, OPM will consider all relevant evidence, including an agency's demonstrated recruitment efforts, human capital management strategic plans that forecast agency workforce needs, relevant analyses made in connection with an agency's workforce planning efforts, labor market data, and employment trends. OPM will also consider whether a nationwide or geographical skills shortage exists, as well as the extent to which the position(s) at issue are located in an undesirable geographic location, will require the incumbent to perform onerous or undesirable duties, or will require the incumbent to work under extraordinary or extreme conditions. To prove that a critical hiring need exists, an agency must demonstrate that it has a critical need to fill the position or positions to meet mission requirements brought about by an exigency such as a national emergency, threat or potential threat, environmental disaster, or other unanticipated or unusual event or mission requirement. A critical hiring need may also be triggered by the need to conform to requirements of law, Presidential directive or Administration initiative, or a congressional or other mandate to meet new or expanded mission requirements by a particular date. In a request for direct-hire authority due to a critical hiring need, an agency must provide sufficient evidence to demonstrate that filling the position(s) is critical to the agency's mission and that the use of other hiring authorities is impracticable or ineffective. To provide agencies with the ability to use the new direct-hire authority, as appropriate, for temporary and term appointments, emergency-indefinite appointments in a national emergency, and overseas limited appointments, OPM is revising 5 CFR 230.402, Agency Authority to Make Emergency-indefinite Appointments in a National Emergency; 5 CFR part 301, subpart B, Overseas Limited Appointments; 5 CFR 316.302, Selection of Term Employees; and 5 CFR 316.402, Procedures for Making Temporary Appointments. This interim regulation will add subpart B to 5 CFR part 337 and amends 5 CFR parts 230, 301 and 316. Elimination of Outside-the-Register Procedures OPM is eliminating 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. The current outside-the-register procedure is available for use only when there is an insufficient number of eligibles on the appropriate register. OPM initially established these procedures to give agencies an alternative to traditional examining methods when there were not enough qualified eligibles on a particular register. The Act, however, provides OPM with the authority to permit agencies to utilize an alternative to traditional examining methods ( *i.e.* , direct-hire authority) when there is a severe shortage of candidates possessing the competencies to perform the job requirements or a critical hiring need. Currently, agencies using outside-the-register procedures are required to provide public notice, apply veterans' preference, and provide selection priorities to certain displaced employees. These requirements are essentially the same as those for the new direct-hire authority. Based upon the foregoing, the current procedures for outside-the-register appointments under 5 CFR part 333 are duplicative and no longer needed, and we are therefore eliminating this regulation. This interim regulation removes 5 CFR part 333. Elimination of the TAPER Authority Based on the elimination of the outside-the-register authority, OPM is also eliminating the Temporary Appointments Pending the Establishment of a Register (TAPER) authority. The TAPER authority was proposed for elimination in 1996, but was ultimately retained to provide agencies with a simplified examining process when filling Worker-Trainee (GS-1 and WG-1 and 2) positions with applicants who had limited education and experience. The decision to retain this authority thus was in response to the Governmentwide need, in connection with the “Welfare to Work” initiative, to provide opportunity for welfare recipients to enter the workforce. Within the past several years, OPM has authorized the use of a number of alternative hiring flexibilities to assist agencies when recruiting individuals with limited education and experience. For example, in 1999, OPM gave agencies authority to use alternatives to the written test normally required when making appointments to clerical positions. These changes, combined with the flexibilities provided by the Act, give agencies the authority to bypass the selection procedures established in title 5 of the United States Code in appropriate circumstances, and therefore obviate the need for an authority to temporarily appoint an individual pending establishment of a register. Eliminating this regulation will not adversely affect employees currently serving under TAPER appointments. These individuals will continue to work 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. Based on the foregoing, there is no longer a need to retain the TAPER authority. This interim regulation eliminates 5 CFR part 316, subpart B. Category Rating and Selection Procedures Title 5 U.S.C. 3319 provides agencies with the authority to develop a category-based rating method as an alternative way of assessing and rating 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 system 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. For all positions other than scientific and professional positions at GS-9 (and equivalent) or higher, otherwise qualified preference eligibles who have a compensable service-connected disability of at least 10 percent must be listed in the highest quality category. This requirement is similar to the provisions of 5 U.S.C. 3313, which are used in numerical rating. Under a category rating system, the agency assesses candidates against job-related criteria and then places candidates into two or more pre-defined categories. The categories are defined through a job analysis conducted in accordance with the “ *Uniform Guidelines on Employee Selection Procedures,* ” at 29 CFR part 1607 and 5 CFR part 300. The categories must be distinct from one another and clearly differentiate between the relative quality of candidates in each. For example, an agency could adopt a two-category system in which the higher category is used for those candidates who meet minimum qualifications and are highly proficient in all the requirements of the job, while the lower category is reserved for those candidates who meet the minimum qualifications and are proficient in some, but not all, of the requirements of the job. For each position to be filled, an agency must decide in advance if they will assess candidates using the traditional numerical ranking and “rule of three” procedures or category rating, and must publish this information in the job announcement. When using the category rating procedure, the job announcement must then clearly define the categories. Specific guidance on using the category rating process will be included in OPM's Delegated Examining Operations Handbook ( *www.opm.gov/deu/* ). The category rating process provides for selections to be made from the highest category or, if fewer than three candidates have been assigned to the highest quality category, in a merged category consisting of the highest and the second-highest quality categories. If a preference eligible is in the category, an agency may not select a non-preference eligible unless the agency requests to pass over the preference eligible, and its request is approved. Objections to a preference eligible must be processed by the agency's delegated examining office in accordance with 5 U.S.C. 3318(b) and 5 CFR 332.406. In addition, agencies are required to follow the provisions of 5 CFR 330.606 and 330.705, pertaining to order of selection. The Act requires agencies to submit an annual report to Congress on the use of their category rating and selection procedures. For oversight purposes, OPM has required agencies to forward a copy of these reports to OPM. This interim regulation adds subpart C to 5 CFR part 337. Expanded Academic Degree Training Authority Section 1331(a) of the Act amends the provisions of 5 U.S.C. 4107 by expanding the authority of an agency 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. Such training must be part of a planned, systemic, and coordinated agency employee development program linked to accomplishing strategic human capital goals. According to 5 U.S.C. 4107(b)(2) agencies may not provide such training for the sole purpose providing an academic degree or as a means of qualifying for a position that requires an academic degree. However, an agency may provide an employee with the opportunity to obtain an academic degree or qualify for an appointment to a particular position for which the degree is required provided that the training is consistent with the agency's human capital management strategic plan and that selection for such training follows established competitive procedures. The academic training program must be provided by a college or university that is accredited by a nationally recognized body. OPM is amending its regulations to reflect these changes. Agencies that pay or reimburse employees for academic degree training must generally require the employee benefiting from such training to enter into a continued service agreement with the agency prior to attending the training. Continued service agreement requirements apply to both tuition reimbursement programs and academic degree training programs. This interim regulation revises subpart C of 5 CFR part 410. Executive Order 12866, Regulatory Review This interim rule has been reviewed by the Office of Management and Budget in accordance with Executive Order 12866. Waiver of Delay of Effective Date Pursuant to 5 U.S.C. 553(d)(3), I find that good cause exists to waive the delay in effective date and make these regulations effective in less than 30 days. The delay in the effective date is being waived because the program changes do not mandate but will give agencies needed flexibilities to recruit, hire and retain high quality candidates quickly and effectively to respond to changing and critical mission requirements. The General Accounting Office has designated strategic human capital management as a Governmentwide high-risk area citing serious human capital shortfalls that erode the ability of agencies to “economically, efficiently and effectively perform their missions.” The President's Management Agenda calls for agencies to “flatten the Federal hierarchy, reduce the time to make decisions, and increase the number of employees that provide services to citizens. The reform also will pursue targeted civil service reforms, such as performance-based compensation and management flexibilities to recruit, retain, and reward a high-quality workforce.” With 50% of Federal employees eligible for retirement in the coming years, agencies must have contemporary, flexible tools for workforce management. Recent media articles have highlighted the public perception that getting a Federal job takes too long and is far too complicated. The Government needs the very best applicants; in turn applicants deserve a streamlined, understandable application process. These changes will accommodate that need. None of the three flexibilities proposed by these regulations are new or untried. In fact, category rating has been used successfully by some agencies for a decade or more under demonstration authority and enabling legislation. Studies of category rating as implemented by the Department of Agriculture indicate that employment of veterans increases and diversity is not reduced. Private-sector companies routinely use tuition payment as a strategy to attract and retain high quality employees. These flexibilities were proposed after broad consultation with a variety of stakeholders including employees, managers and the human resources community. They long have been advocated by numerous public and private groups including the Merit Systems Protection Board and the Partnership for Public Service as forward thinking, solid human capital strategies that should be available Governmentwide rather that to a few select agencies. Direct hire, in particular, is critical if agencies are to respond effectively to the needs of the Nation. With a nationwide shortage of nurses and other healthcare workers, the Government must be able to move quickly and efficiently to hire excellent candidates—direct hire would provide that flexibility. Without it, the staffing to provide care to veterans and others in Federal medical facilities is diminished. Similarly, the critical need to hire talented, highly skilled workers to respond to a national crisis including an environmental threat such a raging wildfire can not be left to traditional hiring methods designed decades ago. The alternatives provided by these regulations are not mandatory but may be used strategically by agencies to improve the management of human capital, to meet mission requirements and to respond to the President's call for a Government that is citizen focus and results oriented. There is a compelling need to provide these flexibilities without delay. Finally, OPM will issue final regulations within 1 year of the publication of these interim regulations or these regulations will sunset. Regulatory Flexibility Act I certify that these regulations would 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 would only apply to Federal agencies and employees. List of Subjects in 5 CFR Parts 230, 301, 316, 333, 337, and 410 Civil defense, Education, Government employees. Office of Personnel Management. Kay Coles James, Director. Accordingly, OPM is amending parts 230, 301, 316, 333, 337, and 410 of title 5 of the Code of Federal Regulations, as follows: PART 230—ORGANIZATION OF THE GOVERNMENT FOR PERSONNEL MANAGEMENT 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. Subpart D—Agency Authority To Take Personnel Actions in a National Emergency 2. Revise § 230.402 paragraphs (c), (h)(1), and (h)(2) to read as follows: § 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 3. The authority citation 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 4. Revise § 301.201 to read as follows: § 301.201 Appointments of United States citizens recruited overseas. When there is a shortage of eligible applicants resulting from a competitive announcement, an agency may give an overseas limited appointment to a United States citizen recruited for a position overseas. 5. Revise § 301.205 to read as follows: § 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 6. The authority citation continues to read as follows: Authority: 5 U.S.C. 3301, 3302; E.O. 10577, 3 CFR, 1954-1958 Comp., p. 218. Subpart B—[Reserved] 7. Remove and reserve Subpart B (§§ 316.201 and 316.202). Subpart C—Term Employment 8. Revise § 316.302 paragraph

(a)to read as follows: § 316.302 Selection of term employees.

(a)*Competitive term appointments.* An agency may make a term appointment under part 332 of this title, by using competitive procedures, or under part 337 of this title, by using direct-hire procedures, as appropriate. Subpart D—Temporary Limited Employment 9. Revise § 316.402 paragraph

(a)to read as follows: § 316.402 Procedures for making temporary appointments.

(a)*Competitive temporary appointments.* In accordance with the time limits in § 316.401 of this chapter, an agency may make a temporary appointment under part 332 of this title, by using competitive procedures, or under part 337 of this title, by using direct-hire procedures, as appropriate. PART 333—[REMOVED AND RESERVED] 10. Remove and reserve Part 333. PART 337—EXAMINING SYSTEM 11. Remove the authority citations for §§ 337.101 and 337.102 and add an 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. 12. Add Subpart B to part 337 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. 337.207 Sunset. Subpart B—Direct-Hire Authority § 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 for a position or group of positions if OPM determines that there is either a severe shortage of candidates or a critical hiring need for such positions. § 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, and parts 211 and 337, subpart A of this chapter.

(b)A *severe shortage of candidates* for a particular position or group of positions means that an agency is unable to identify candidates possessing the competencies required to perform the job requirements despite extensive recruitment, extended announcement periods, and the use, as applicable, of hiring flexibilities such as recruitment and relocation incentives.

(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 an emergency, potential threat, or unanticipated or unusual mission requirement, or to conform to the requirements of law, a Presidential directive or Administration initiative, or an unexpected event outside of an agency's control. § 337.203 Public notice requirements. Agencies must comply with public notice requirements, as prescribed in 5 U.S.C. 3327 and 3330, and part 330, subpart G of this chapter with respect to any position that an agency seeks to fill using direct-hire authority. § 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 on its own that such a shortage exists, or may make this decision in response to a written request from an agency.

(b)In a request for direct-hire authority under this section, an agency must identify the position(s) it is unable to fill and must include 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;

(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 the agency's use of hiring flexibilities such as recruitment or retention allowances. § 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 on its own that there is such a need, or may make this decision in response to a written request from an agency.

(b)In a request for direct-hire authority under this section, an agency must:

(1)Identify the position(s) that it must fill;

(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. § 337.206 Terminations, modifications, extensions, and reporting.

(a)*Termination and modification.* On a periodic basis, for each direct-hire authority that it previously granted, OPM will review the appropriate agency's use of the authority to ensure that the agency is using the authority properly and to determine if the agency's continued use of the authority is supportable. OPM will terminate or modify a direct-hire authority previously granted to an agency if OPM determines that there is no longer a severe shortage of candidates or a critical hiring need. OPM may also terminate an agency's authority when the agency has used its authority improperly.

(b)*Extension.* OPM may extend an agency's direct-hire authority if OPM determines that there is or will continue to be a severe shortage of candidates or a critical hiring need with respect to a particular position as of the date on which the agency's authority is due to expire.

(c)*Reporting requirement.* On a periodic basis, OPM may request information from agencies regarding their use of these direct-hire authorities. § 337.207 Sunset. The authority to use direct hire authority terminates June 14, 2004. 13. Add Subpart C to part 337 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. 337.306 Sunset. Subpart C—Alternative Rating and Selection Procedures § 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. § 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 knowledge, skills, abilities, or competencies. § 337.303 Agency responsibilities. To use a category rating system, 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 knowledge, skills, abilities or competencies; and

(e)Establish documentation and record-keeping procedures for reconstruction purposes. § 337.304 Veterans' preference. In this subpart:

(a)Veterans' preference must be applied as prescribed in section 1312(a)(2) of Public Law 107-296, the Homeland Security Act, and codified at 5 U.S.C. 3319; and

(b)Veterans' preference points as prescribed in § 337.101 are not applied in category rating. § 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. § 337.306 Sunset. The authority to use category rating terminates June 14, 2004. PART 410—TRAINING 14. Revise the authority citation in part 410 to read as follows: Authority: 5 U.S.C. 4101, et seq., 4107; E.O. 11348, and (3 CFR, 1967 Comp., p. 275). Subpart C—Establishing and Implementing Training Programs 15. Revise § 410.308 to read as follows: § 410.308 Training to obtain an academic degree.

(a)An agency may authorize training for an employee to obtain an academic degree under conditions as prescribed at 5 U.S.C. 4107(a).

(b)Colleges and universities used 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 at the Department.

(c)The selection of employees for an academic degree training program must follow the requirements of § 335.103(b)

(3)and part 300, subpart A of this chapter. Subject to the additional requirement that the purpose of the selection and assignment is to accomplish an identified goal consistent with the agency's human capital management strategic plan, 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.

(f)The authority to authorize training for an employee to obtain an academic degree terminates June 14, 2004. [FR Doc. 03-14971 Filed 6-10-03; 4:46 pm]

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