[Federal Register Volume 77, Number 92 (Friday, May 11, 2012)]
[Rules and Regulations]
[Pages 28193-28223]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-11068]
[[Page 28193]]
Vol. 77
Friday,
No. 92
May 11, 2012
Part III
Office of Personnel Management
-----------------------------------------------------------------------
5 CFR Parts 213, 302, 315 et al.
Excepted Service, Career and Career-Conditional Employment; and
Pathways Programs; Final Rules
Federal Register / Vol. 77 , No. 92 / Friday, May 11, 2012 / Rules
and Regulations
[[Page 28194]]
-----------------------------------------------------------------------
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Parts 213, 302, 315, 330, 334, 362, 531, 536, 537, 550, 575,
and 890
RIN 3206-AM34
Excepted Service, Career and Career-Conditional Employment; and
Pathways Programs
AGENCY: U.S. Office of Personnel Management.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Office of Personnel Management (OPM) is issuing final
regulations implementing the Pathways Programs established by E.O.
13562, signed December 27, 2010. As directed by the President, the
Pathways Programs provide clear paths to Federal internships and
potential careers in Government for students and recent graduates. The
Pathways Programs consist of the Internship Program, the Recent
Graduates Program and the Presidential Management Fellows Program.
Positions in the Pathways Programs are excepted from the competitive
service. Participants in these Programs are appointed under the newly
created Schedule D of the excepted service.
DATES: This final rule is effective July 10, 2012. Agencies, however,
shall have a 6-month transition period following the effective date of
the final rule to convert to the Internship Program any students
serving under appointments made pursuant to the Student Educational
Employment Program and to transition to the new Presidential Management
Fellows Program any Fellows currently serving under appointments made
pursuant to the existing Presidential Management Fellows Program. In
addition, during the transition period, agencies are permitted to make
appointments under the Internship and Presidential Management Fellows
Programs even if they have not entered into a final Memorandum of
Understanding (MOU) with OPM, as required by 5 CFR 362.104. This
transition period does not apply to the Recent Graduates Program, and
appointments under the Recent Graduate Program may not be made until an
MOU is in place.
FOR FURTHER INFORMATION CONTACT: Gale Perryman, 202-606-1143, Fax: 202-
606-4430 by TTY: 202-418-2532, or email: gale.perryman@opm.gov.
SUPPLEMENTARY INFORMATION: In Executive Order 13562, dated December 27,
2010, President Obama established the Pathways Programs, consisting of
three streamlined developmental programs: the Internship Program for
students; the Recent Graduates Program for people who have completed a
qualifying educational program within the preceding 2 years; and the
Presidential Management Fellows (PMF) Program for people who obtained a
graduate or professional degree within the preceding 2 years. To
implement this Executive Order, OPM issued proposed regulations for
parts 213, 302, 315, 330, 334, 362, 531, 536, 537, 550, 575, and 890 of
title 5, Code of Federal Regulations (5 CFR) on August 5, 2011.
As explained in the proposed regulations, the President is
authorized by statute to provide for ``necessary exceptions of
positions from the competitive service'' whenever warranted by
``conditions of good administration.'' (5 U.S.C. 3302). In Executive
Order 13562, the President found that ``conditions of good
administration (specifically, the need to promote employment
opportunities for students and recent graduates in the Federal
workforce) make necessary an exception to the competitive hiring rules
for certain positions in the Federal civil service,'' i.e., those to be
filled through the Pathways Programs. (Exec. Order No. 13562, 75 FR
82585 (Dec. 27. 2010)).
OPM's regulations implement the President's order by establishing
the framework for each of the three discrete excepted service
internship programs for students and recent graduates:
The Internship Program is for current students. It
consolidates two existing internship programs into a single program
designed to provide high school, vocational and technical,
undergraduate, graduate, and professional students, opportunities to be
exposed to the work of Government through Federal internships. It is
largely modeled after the existing Student Career Experience Program
(SCEP).
The Recent Graduates Program is a new program that will
provide developmental opportunities in Federal jobs for individuals who
have recently graduated from qualifying educational institutions or
programs.
The Presidential Management Fellows (PMF) Program has been
the Federal Government's premier leadership development program for
graduate and professional degree candidates for over three decades.
Executive Order 13562 preserves the PMF Program while making it more
flexible by, for example, expanding the eligibility window for
applicants to include those who have received a qualifying graduate
degree within the preceding 2 years.
The appointing authorities for each Pathways Program are contained
in Schedule D of the excepted service, a new schedule created by
section 7 of Executive Order 13562. The President created this new
schedule pursuant to his statutory authority to make necessary
exceptions to the competitive hiring rules when warranted by conditions
of good administration. His findings to support the exception are set
forth in section 1 of the Executive Order. Under the new Schedule D
authority, agencies will be able, under OPM's guidance, direction, and
oversight, to use excepted service hiring to fill positions from among
a particular class of eligible individuals--students and recent
graduates. This approach is consistent with long-standing civil service
practice under excepted service hiring authorities, including, for
example, Schedule A hiring for people with disabilities.
Part 362 of title 5, Code of Federal Regulations (CFR) contains the
regulatory requirements for each Pathways Program. Part 362 consists of
four subparts. Subpart A contains only those requirements common to all
Pathways Programs. Program-specific requirements are set forth in
subpart B for the Internship Program, subpart C for the Recent
Graduates Program, and subpart D for the PMF Program.
Summary of Comments
OPM received 238 written submissions with comments on the proposed
Pathways Programs. A member of Congress, 24 Federal agencies, 8 labor
unions representing Federal employees, 74 individual Federal employees,
20 colleges and universities, 11 professional organizations and student
unions, 56 current students and recent graduates and 44 other members
of the public submitted comments.
OPM did not address comments that are outside the scope of the
regulations. One agency wanted to know how current hiring and pay
freezes would affect hiring under the Pathways Programs. Some students
and recent graduates submitted resumes for employment consideration
under the Pathways Programs. Some submissions detailed personal job
search experiences. A few were addressed to agency specific programs
not related to Pathways. We did not respond to these submissions in
this final regulation.
The majority of the comments expressed support for the creation of
the Pathways Programs. Multiple commenters emphasized that the Programs
are necessary for recruiting and hiring students and recent
[[Page 28195]]
graduates and will be beneficial to the Federal Government. Multiple
commenters also characterized the Programs as appropriately limited and
emphasized the importance of the oversight tools available to OPM under
the proposed regulations. Only two of the commenters--both Federal
employee unions--questioned the necessity for the Programs,
particularly the Recent Graduates Program. A third union also indicated
that it had concerns with the Programs. Even these union commenters,
however, supported some aspects of the programs.
Several commenters made arguments either for or against the
programs in a more general manner, in addition to lodging specific
comments on particular regulatory provisions. These are addressed
below, at the outset of the discussion. The comments that addressed
specific regulatory provisions are addressed in the discussion of the
applicable regulatory sections.
As explained in the proposed regulations, each of the Pathways
Programs is intended to be limited in scope, transparent, and fair to
veterans. They also require an investment from agencies in the
training, mentoring, and career development of the individuals who are
brought into these Programs. OPM will play a critical oversight role to
ensure that agencies comply with the President's direction to use these
Programs as a supplement to, rather than a substitute for, the
competitive hiring process. It is with these five core principles in
mind (limited scope, transparency, fairness to veterans, agency
investment, and OPM oversight) that we reviewed the public comments on
the proposed regulations.
Responses to Overarching Comments
1. Necessity
Two unions commented that the Pathways Programs are not necessary
for the Federal Government to be able to compete with the private
sector for high-quality entry-level candidates. Another union called
the Pathways regulations a step in the right direction, but raised some
concerns about particular provisions.
We disagree with the unions' comments that these programs are
unnecessary. In Executive order 13562, the President, exercising his
statutory authority, determined that the Pathways Programs are
necessary for the Federal government to compete for students and recent
graduates. The President summarized his findings of necessity in
section 1 of the order:
The Federal Government benefits from a diverse workforce that
includes students and recent graduates, who infuse the workplace
with their enthusiasm, talents, and unique perspectives. The
existing competitive hiring process for the Federal civil service,
however, is structured in a manner that, even at the entry level,
favors job applicants who have significant previous work experience.
This structure, along with the complexity of the rules governing
admission to the career civil service, creates a barrier to
recruiting and hiring students and recent graduates. It places the
Federal Government at a competitive disadvantage compared to
private-sector employers when it comes to hiring qualified
applicants for entry-level positions. To compete effectively for
students and recent graduates, the Federal Government must improve
its recruiting efforts; offer clear paths to Federal internships for
students from high school through post-graduate school; offer clear
paths to civil service careers for recent graduates; and provide
meaningful training, mentoring, and career-development
opportunities. Further, exposing students and recent graduates to
Federal jobs through internships and similar programs attracts them
to careers in the Federal Government and enables agency employers to
evaluate them on the job to determine whether they are likely to
have successful careers in Government.
In support of its position that the programs are not necessary, one
union relies on the current economic environment, specifically the
unemployment rate. Essentially, it argues that there is a greater
supply of potential workers now than there was in the years when the
data was gathered for some of the reports cited by OPM in its notice of
proposed rulemaking, when unemployment rates were lower. The union then
draws the conclusion that the Federal Government is necessarily more
competitive with the private sector now, because there are more
qualified applicants who need work.
We disagree. First of all, it is short-sighted to focus on the
unemployment rate for any particular time period in determining the
necessity for the Programs. These Programs are intended to be enduring
and as the economy improves, competition for skilled workers with other
sectors will increase.
Further, even in a tight job market, there exists stiff competition
among employers for students and recent graduates who display great
potential. Citing Bureau of Labor Statistics analysis, one commenter
noted that the number of jobs requiring a master's degree will increase
by 18 percent from 2008-2018, and the number requiring a doctoral
degree will increase by 17 percent during the same period. Three
academic commenters and one good government group supported the
President's finding that the Pathways Programs are essential to
recruiting and hiring students and recent graduates; they warned that
the Federal Government would largely miss out on this key segment of
the workforce without the Pathways Programs. OPM agrees that the
Federal Government must be able to compete for and hire students and
recent graduates, who may lack relevant work experience but who possess
significant untapped potential. The Pathways Programs are designed to
serve this important purpose.
The unions' comments also fail to take into consideration other
important and independent justifications for establishing the Pathways
Programs. For example, in a report published on February 6, 2012, the
Partnership for Public Service, citing data compiled by the National
Association of Colleges and Employers, found that only 2.3 percent of
some 35,401 students surveyed were interested in a career with the
Federal Government. See http://ourpublicservice.org/OPS/publications/viewcontentdetails.php?id=170. The Pathways Programs will help promote
enthusiasm for a Federal career among this demographic. By providing
positive experiences to students and recent graduates, we help debunk
negative stereotypes that they and their contemporaries may harbor
about working for the Federal Government. We also leave them with a
favorable impression of Government work, so that they would be more
likely to consider a return to Government service at a later point in
their careers. Several academic commenters emphasized the important
role played by this aspect of the Programs, citing experience with past
internship and fellowship programs to support their conclusions.
One union commented that the fact that a permanent job is not
automatically available to all who are appointed to the Recent
Graduates Program undermines the Federal Government's ability to
attract high-potential candidates through the Program. It contends that
an individual with a job offer from the private sector would surely
accept that over a Recent Graduate appointment without the promise of
conversion. We disagree. High-potential applicants who are interested
in a career in public service will be interested in Recent Graduate
appointments because the Program will provide a meaningful training and
developmental experience, as well as the potential for a permanent job.
Based on our experience with the civil service, training and career
development are among the attributes most often cited by recent
graduates as desirable in employment opportunities.
[[Page 28196]]
This commenter also contends that the best indicator of success on
the job is experience, and that it would be ``perplexing'' for the
Federal Government to ``seek out'' and ``prefer'' inexperienced
applicants over those with experience. These Programs are not motivated
by any desire to prefer one type of worker over another. As discussed,
agencies should use the Pathways Programs as part of an overall
workforce planning strategy to ensure that their workforce is diverse
and drawn from all segments of society.
Another union suggested that the introduction of ``category
rating'' into the competitive service selection process, combined with
other improvements to the competitive hiring process, may have
eliminated barriers to entry for inexperienced workers. The union
contends that this change has not been in place long enough to evaluate
its impact on students and recent graduates. The union is correct that
category rating allows a hiring official to select from a larger list
of best qualified candidates than the so-called ``rule of 3.'' But
category rating does not address the advantage held by experienced
workers in the competitive examining process. In order to be
considered, an individual must make the top quality category that the
agency established by performing well in the competitive examining
process. Students and recent graduates have not fared well in the
examining process because of their lack of work experience. Though we
think the move to category rating is a good one for competitive
examining overall, we disagree that it addresses the specific needs
that the Pathways Programs are narrowly drawn to address.
This union also suggested that a better solution to the problem
with recruiting and hiring students and recent graduates is to reform
the competitive hiring process itself. This initiative is not
inconsistent with improving the competitive hiring process. Rather, it
is an efficient, targeted approach to address specific, identified
problems with the current approach to entry-level hiring in the Federal
Government.
A union commented that any program that focuses on students and
recent graduates is demoralizing to temporary employees working at the
Forest Service and other land management agencies. The Pathways
Programs are not intended to demoralize any other segment of the
Federal workforce. Rather, they are intended to provide for a limited
exception to the competitive hiring rules to address a specific concern
about the Federal Government's ability to interest students and recent
graduates in Federal careers and to successfully recruit, hire, and
retain them.
2. Schedule D
Multiple comments addressed the new Schedule D, which was created
by section 7 of Executive Order 13562 and is the appointing authority
for each of the Pathways Programs.
One union criticized the new Schedule D hiring authority as overly
broad. The President created Schedule D pursuant to his statutory
authority to make necessary exceptions to the regular competitive
hiring rules when warranted by conditions of good administration. It is
based upon his determination that the need to promote employment
opportunities for students and recent graduates in the Federal
workforce makes necessary an exception to the competitive rules. OPM's
regulations simply implement the President's mandate.
The union also disputes that students and recent graduates
constitute a ``class'' or a ``class of persons'' eligible for
appointment pursuant to Schedule D. Schedule D was created by the
Executive order, which provides that Schedule D shall include
``[p]ositions other than those of a confidential or policy determining
character for which the competitive service requirements make
impracticable the adequate recruitment of sufficient numbers of
students attending qualifying educational institutions or individuals
who have recently completed qualifying educational programs.'' Section
2 of the Executive order directs OPM to issue regulations, including
``a description of the positions that executive departments and
agencies may fill through the Pathways Programs.'' The regulations
provide for agencies to submit to OPM the positions they seek to fill
through the Pathways Programs, and OPM can approve or disapprove of the
use of the Programs for those positions through the MOU process.
Because the President established Schedule D and the class of
individuals covered by it through the Executive order, any comments
challenging that determination are beyond the scope of these
implementing regulations.
One union commented that Pathways Participants may have available
to them training and mentoring opportunities that are not available to
other agency employees. The union is correct that agencies may
implement the Programs in this manner, but it is in keeping with the
nature of the Program to provide Pathways Participants with training
and mentoring opportunities. These types of programs are designed to
leverage the cognitive abilities of students and recent graduates
through training, mentorship, and development. The current version of
the Presidential Management Fellows Program and the Veterans'
Recruitment Appointment authority are examples where program
participants receive training and development opportunities that may
differ from those offered to individuals hired through the competitive
process or through any other hiring authorities.
3. Position Identification
The proposed regulations contain provisions governing how to
identify positions that may be filled through the Pathways Programs.
One union commented that the regulations improperly delegate to
agencies and their components the authority to exempt positions from
the competitive service. We disagree. Agencies are required to report
to OPM on the types of positions they seek to fill through the Pathways
Programs; they are required to have an Memorandum of Understanding
(MOU) in place with OPM in order to use the Pathways Programs; and OPM
will decide whether or not to approve the types of positions agencies
are filling through the Programs through the MOU renewal process.
4. Definitions
The proposed regulations contained a number of definitions. Some
commenters requested clarifications to some of the definitions. As
discussed below, we have modified some language in the definitions to
address these concerns.
Some comments suggested that the definition of ``qualifying
educational institution'' should not include a homeschool curriculum.
We think it should. States generally recognize homeschooling as an
adequate educational alternative, and we believe it is appropriate to
defer to the states on this issue. Moreover, the requirements and
standards for homeschooling vary widely from state to state or even
within a particular state. OPM, therefore, declines to adopt one
commenter's suggestion that there should be a specific Government-wide
definition of homeschooling for purposes of these regulations. Rather,
agencies will be responsible for determining the eligibility of a
homeschooled student applicant.
One union commented that, with respect to the Recent Graduates
Program, the definition of ``qualifying educational institution'' does
not indicate whether high school degrees would qualify an individual
for a Recent Graduate appointment. While the proposed regulation did
not include
[[Page 28197]]
high school in the definition of ``qualifying educational
institution,'' they were not specifically excluded, as is our
intention. As a result, we have clarified the definition to exclude
high school degrees.
An academic commenter raised a different issue with respect to this
definition as it pertained to certificate programs. It suggested that
the proposed definition is too broad and subject to abuse. We agree. We
have adopted the academic commenter's proposed definition, with
modification, and defined ``certificate programs'' to mean ``post-
secondary education, in a qualifying educational institution,
equivalent to at least one academic year of full-time study that is
part of an accredited college-level, technical, trade, vocational, or
business school curriculum.''
With respect to the PMF Program, a union suggested further
clarification of the term ``advanced degree'' to make clear that the
Program is open only to those with master's or doctoral degrees or
other professional degrees. An academic commenter made the further
point that ``advanced degree'' is no longer in use in the educational
community. The commenter suggested using the term ``professional or
graduate degree'' instead. We agree with both comments. Subpart A now
defines ``advanced degree'' as ``a professional or graduate degree.''
5. Memorandum of Understanding (MOU)
The proposed regulations require agencies to execute an MOU (the
``Pathways MOU'') with OPM as a prerequisite to using the Pathways
Programs. This requirement generated several comments.
A Senator commented that it is vital that sufficient OPM oversight
be built into the regulations to ensure that the new Pathways Programs
do not become a substitute for competitive hiring. Union commenters and
multiple academic commenters also generally supported rigorous
oversight of the Pathways Programs. One academic organization
characterized the regulations as creating a ``rigorous and accountable
framework.'' One union commended the MOU requirement as a ``positive
idea'' that will give OPM ``a foothold on enforcing the Pathways
regulations' requirements against employing agencies.''
We agree that rigorous oversight by OPM is important. Such
oversight is built into the regulations by a number of requirements,
including, for example: (1) The requirement that agencies report to OPM
annually on their intended use of the Pathways Programs; (2) the
requirement that agencies enter an MOU with OPM in order to use the
Pathways Programs; (3) the requirement that agencies assign a Pathways
Programs Officer to serve as a point of contact with OPM's Student
Programs Office; (4) the requirement that agencies provide OPM with
information about opportunities in the Pathways Programs for posting on
the Internet; and (5) the authority of the OPM Director to cap the
number of conversions to the competitive service from the Programs
(which we have modified, as discussed below, to include the power to
cap the number of appointments into the Programs, as well).
One union commented that an MOU is not an appropriate vehicle for
oversight of agency use of the Pathways Programs. It suggested that the
concepts to be addressed in the MOU instead be addressed specifically
in the regulations. We disagree. The MOU will be an effective oversight
tool and provides a sufficient degree of accountability. We have had
success with this type of tool in an analogous context. That is, we
routinely execute delegated examining agreements that authorize
agencies to perform their own competitive examining and competitive
service hiring and have found that to be a useful vehicle for
implementation of other recent hiring reform efforts.
The union appears to be specifically concerned that agencies are to
include in their MOUs the criteria for conversion. To the extent this
comment is suggesting that this criteria should be in the regulations
(see comment above), we agree with respect to the minimum requirements
and note that they are set forth in the regulations for each Pathways
Program--Internship, Recent Graduates, and PMF, respectively. We are
also asking agencies to provide information in their MOUs on how they
will apply these criteria.
One union commented that the regulations do not provide for any
enforcement mechanism to hold an agency accountable for adhering to the
terms of its MOU with OPM. It contended that the regulations offer no
way for a union or other interested party to complain about an alleged
violation of an MOU. We disagree. Any such complaints could be lodged
with OPM's Student Programs Office. In addition, we note that
complaints can be raised directly with agencies through their Pathways
Programs Officer, a position each agency was required to create by
Executive Order 13562. Moreover, OPM's office of Merit System
Accountability and Compliance (MSAC) will incorporate oversight of the
Pathways Programs into its own evaluations of agency human resources
programs and also into agency-led evaluations conducted under an
agency's human capital accountability system. Also, nothing in the
Pathways Programs implementation alters an employee's ability to seek
any other relief that would otherwise be available.
Another union commented that the regulations should specify that
OPM has the authority to terminate the MOU and rescind an agency's
authority to use the Pathways Programs if OPM learns of agency abuse.
We agree and that was always our intention. We have modified our
regulations to make clear that OPM possess the power to revoke an
agency's MOU when OPM finds the agency's practices are inconsistent
with the Executive order, regulation, or the MOU.
Multiple agencies also commented on the requirements of the MOU.
They posed questions about such matters as: how long they would have to
prepare the MOU, whether OPM would provide a template for the MOU, and
whether the MOU would apply at the agency level or the component level.
One agency thought each Pathways Program should require a separate MOU.
Other agency commenters expressed concern regarding the administrative
burden of the MOU requirement.
The regulations do not require agencies to establish an MOU within
any particular timeframe. During the transition period, agencies are
permitted to make appointments under the Internship and Presidential
Management Fellows Programs even if they have not entered into a final
Memorandum of Understanding (MOU) with OPM, as required. This
transition period does not apply to the Recent Graduates Program, and
appointments under the Recent Graduate Program may not be made until an
MOU is in place.
Several agencies thought the level of detail required in the MOU
and the requirement to re-execute the MOU every 2 years were excessive,
and they recommended requiring renewal of an MOU only every 5 years.
Another agency recommended re-executing the MOU only if the agency
decides to make significant changes. We did not adopt the suggestion
concerning re-executing the MOU. While we recognize that re-executing
the MOU may occasion some administrative burden, that burden is
necessary, especially in light of the benefits that having an MOU in
place will provide. The MOU will help OPM oversee agencies' use of
these Programs, which are to serve as limited exceptions to the regular
competitive hiring rules. On the other hand, we understand the
[[Page 28198]]
concerns about the level of detail required in the MOU. As a result, we
have streamlined the MOU requirements by removing provisions that are
not essential to our initial oversight of the Programs. If we find we
need additional information concerning an agency's implementation of
the Pathways Programs in order to conduct full and complete oversight,
we will request the information at that time.
One agency suggested that its policies and procedures may change as
the Pathways Programs evolve and become more familiar to agencies. The
agency did not think such changes should necessitate updates and re-
execution of the MOU. We disagree. If OPM is to conduct rigorous
oversight of these Programs, as is our intention, then it is important
for regular re-assessment of each agency's use of them. Indeed, the
commenter's suggestion that it be permitted to adopt significant
changes to agency policies or procedures for a Pathways Program without
modifying its MOU is antithetical to this intention. By requiring re-
execution of the MOU on a bi-annual basis, we can better assist
agencies in complying with the Executive order, these regulations, and
the law.
One agency expressed concern that unions will make claims of
excessive or inappropriate use under Pathways and wanted to know if OPM
had additional recommendations agencies could include in their MOU to
help eliminate misconceptions about Pathways. The Programs are designed
to be a supplement to the competitive hiring procedures, and not a
substitute for them. The Programs are limited in nature and subject to
robust OPM oversight. As stated earlier, OPM is working on sample
template MOUs, and agencies may work with OPM to include additional
items in the MOU that are particular to their circumstances. OPM is
also considering additional guidance to agencies to help them use the
Programs appropriately, as part of an overall workforce planning
strategy.
Another agency expressed concern that the requirement that an MOU
be in place before agencies can use the Pathways Programs will impede
agencies' abilities to hire students for jobs that will be available
soon after the final regulations take effect. This agency requested a
transition period that would allow agencies to fill positions under the
Pathways Programs during the implementation period needed to complete
the MOU. As noted above, we have adopted the agency's suggestion.
First, we are going to provide for the final regulations to take effect
60 days after their publication, rather than 30 days. Second, we have
created a six-month transition period during which agencies will be
able to hire Interns and PMFs even if they have not executed an MOU
with OPM. Third, we are working now to have MOU templates in place so
that agencies can satisfy the MOU requirement promptly upon the
regulations being finalized.
One agency commented that it does not know what the requirement in
section 362.104(a)(1)(I)(B) to address in the MOU how it will ``assess
candidates'' means, since the regulations require agencies to qualify
candidates based on the OPM Qualification Standard. As required by part
302, agency MOUs must identify what process an agency will use to
assess candidates for employment in accordance with part 302 under a
Pathways Program, e.g., whether applicants will be rated and ranked
using a numerical system or whether the agency will use an unranked
method using veterans' preference status.
6. Job Announcements
The proposed regulations require agencies to provide information
about Pathways Program opportunities to OPM, which will in turn provide
such information to the public. One union commented that the
regulations should further specify that agencies must post all job
announcements for positions in the Pathways Programs on USAJOBS.gov. It
contends that this is required by law.
We disagree with the commenter's legal conclusion. As a matter of
policy, however, we agree that individuals who are interested in
applying for positions in the Pathways Programs should be able to
obtain information about the opportunities that are available. This
will benefit all members of the public who are interested in and
eligible for these Programs, including veterans who may have been out
of school for up to 6 years and therefore not have the same access to
school career counselors. Thus, we are retaining the provisions in the
regulations that require agencies to provide information to OPM about
positions, locations, and where to find information to apply for
Pathways jobs. OPM will make this information available to the public.
Our intention is to do so through USAJOBS.gov, as the commenter
suggested.
Some agencies also submitted comments regarding the requirement to
provide information about Pathways opportunities to OPM. A few confused
the regulatory reporting requirements for accountability and oversight
with the requirement to post Pathways opportunities to the public. The
reporting requirements, which are found at Sec. 362.109, are separate
from the requirement to provide information about Pathways Programs
opportunities for OPM to post, found at Sec. 362.105. These separate
regulatory requirements serve different purposes. The reporting
requirement is intended to encourage agencies to conduct thoughtful
workforce planning and to provide OPM with information about the
expected use of the Pathways Programs during the forthcoming year--both
in particular agencies and across Government--including the specific
positions to be filled. The posting requirement is provided to promote
transparency and make it easier for students and recent graduates to
learn about Pathways Programs opportunities.
Agencies expressed concern that the regulations will prohibit them
from engaging in targeted recruitment of students through colleges and
universities or specific networks such as NACElink or Experience.com.
Similarly, one agency commented that it needed to retain the ability to
hire local students and expressed concern over the cost to recruit
under the new requirements. The regulations require agencies to provide
basic information about Pathways Programs opportunities to OPM, which
will then post that information through USAJOBS.gov. However, agencies
retain the discretion to determine how they will recruit and accept
applications as long as they comply with applicable law and the
regulatory procedures of part 302. Nothing in the regulations precludes
agencies from undertaking local recruiting efforts or using familiar
recruiting networks, so long as they do so in compliance with law.
Thus, agencies retain the flexibility to establish guidelines regarding
minimum announcement periods, geographic areas of consideration, or
additional recruitment sources. However, agencies must follow the
appointment procedures in part 302.
An agency expressed concern that the requirement to announce
information about Pathways positions would result in an increase in the
volume of applicants, which would in turn increase the length of time
needed to fill a position and perhaps even make it more difficult to
increase diversity in the workforce. In contrast, several comments from
schools, unions, and private citizens supported the posting of this
information. OPM acknowledges that posting information about Pathways
opportunities has the potential to increase the number of applicants
and possibly lengthen the amount of time to fill positions under
Pathways. Nonetheless, we agree with the
[[Page 28199]]
commenters who view the requirement positively and note that Executive
Order 13562 requires posting of information about Pathways
opportunities. This allows for more transparency in Federal internship
programs. Members of the public interested in internship opportunities
with the Federal Government--whether they are students, recent
graduates, or recently obtained a graduate or professional degree--will
now be able to learn about these opportunities through a single portal,
USAJOBS.gov. This is the portal to all Federal jobs in the competitive
service, so it is a source that job seekers are accustomed to
consulting. We also believe that agencies ultimately benefit from
having larger numbers of qualified applicants. We disagree that being
more transparent about internship opportunities will harm agency
diversity efforts. Broader dissemination of Pathways opportunities will
facilitate agency efforts to recruit from all segments of society.
7. Caps
The proposed regulations reserve to the Director the authority to
set a cap on conversions from the Pathways Programs into the
competitive service, as authorized by Executive Order 13562. They do
not establish a specific cap. One union suggested that OPM establish a
cap from the outset, and that the number of Participants in the
Pathways Programs be ``limited to a very small percentage of new
hires'' in order for the Federal Government to benefit from the
Programs. A second union also urged establishment of an initial cap.
Some agencies, on the other hand, suggested there should be no cap.
They argued that the size of the Programs should be limited only by
Federal agency hiring needs and not be a centrally determined cap.
Multiple academic and good government groups also commented that the
Programs should not be capped.
The Executive order grants to the OPM Director the discretion to
limit the number of Program Participants' Government-wide. It would, of
course, be necessary to apply any such limits to individual agencies in
order to administer a Government-wide cap. The authority to establish a
cap is an important oversight tool, along with the other oversight and
accountability components of the Pathways framework.
OPM has decided that it would be premature to impose a cap before
we have experience with how agencies use the Programs. OPM expects
agencies to use Pathways as a supplemental hiring authority that is
part of an overall workforce planning strategy, and not as a substitute
for competitive hiring. Indeed, as one commenter noted, the Pathways
Programs are inherently limiting--only students and recent graduates
are eligible--in ways that previous excepted service programs have not
been. OPM reserves the right to implement a cap if we find that the
robust oversight mechanisms we have put in place are insufficient.
Accordingly, OPM will be monitoring agency use of the Programs through
data collection, assess on an annual basis whether to impose any caps,
and provide notice of any decision to impose a cap in a manner
determined by the Director.
One union commented that if OPM imposes a cap, it should be on the
number of individuals hired into the Pathways Programs, as opposed to
the number converted to the competitive service. The union is opposed
to any cap on the number of Program Participants that are ultimately to
be converted to competitive service jobs. The union is concerned that a
cap on conversions will result in good employees being let go because
of an arbitrary limitation on conversions.
A cap on conversions would naturally limit the number of people
hired into the Programs in the first place. It is not in agencies'
interests to bring on and develop quality talent, only to let them go
after 2 years. We would expect agencies to take into account any caps
on conversions when determining how many Pathways Participants to hire
in the first place.
Nonetheless, we are mindful of the union's concern that matters
outside an agency's control, including, for example, new statutory
mandates or restrictions, can upend even the best laid strategic
workforce plans. In addition, multiple agencies agreed with the union
that any caps imposed on the Program should be placed on Pathways
appointments and not conversions. The agencies reasoned that limiting
appointments automatically limits conversions. Some agencies also
commented that they do not want to train Pathways Participants and then
not have the opportunity to convert them due to a Program cap.
Accordingly, we are adopting the suggestion offered by the union and
agency commenters to allow for a cap on the number of hires into the
Pathways Programs. The Director's authority to cap the number of
conversions of Pathways Participants and his overall authority to
oversee and implement the Programs encompasses the inherent authority
to limit the number of individuals hired into the Pathways Programs.
Reserving this authority to the Director is in the best interests of
administering the Programs. We have modified our regulations
accordingly.
A union commented that the regulations give OPM too much discretion
in establishing any such caps. The union asked that additional
substantive standards be added to the regulations, but did not offer
any suggestions on the types of standards to include. Some agencies
also questioned what criteria OPM would use in evaluating whether to
establish any caps. We agree that it is important to identify the
criteria we would consider. That is why section Sec. 362.108 of the
regulations contains several substantive standards for the OPM Director
to consider in establishing any caps. In response to the comments, we
have identified an additional substantive consideration: An agency's
use of the Programs to hire a majority of the individuals for any
single entry-level position over a period of years would be evidence
that the agency is not using the Programs as a supplement to
competitive examining. We have modified the regulations to reflect this
change.
One agency suggested requiring OPM to assist agencies with the
implementation of Pathways by providing training or by assigning OPM
personnel as points-of-contact for each agency. The agency also
suggested an interagency workgroup to provide agencies the support
needed to implement Pathways. OPM recognizes the administrative
requirements agencies must follow to implement the Pathways Programs
and has been establishing appropriate support mechanisms. Currently
each agency is assigned an OPM Human Capital Management Representative
who provides agencies with policy assistance. In addition, there are
OPM program managers assigned to each Pathways Program who can assist
agencies with Pathways implementation. OPM has also established a
Pathways Advisory Council consisting of agency representatives to
assist OPM in implementation of the Pathways Programs. Such assistance
will include providing templates for MOUs and Participant Agreements,
and providing information about best practices to agencies.
8. Conversion to the Competitive Service
The proposed regulations set forth the rules governing conversion
of successful Pathways Participants to jobs in the competitive service.
We received multiple comments regarding the rules on conversion.
[[Page 28200]]
Two unions suggested that the opportunity for Interns and Recent
Graduates to convert to competitive service positions upon completion
of their Programs should be eliminated. The unions contend that Interns
and Recent Graduates will obtain enough experience during their
Internship and Recent Graduate Programs to be able to compete
effectively for positions in the competitive service. The President has
already made the determination to allow for conversion, and these
regulations simply implement his order. Accordingly, any comments
concerning whether to allow for conversion are outside the scope of
these regulations.
In any event, OPM believes the opportunity for conversion is
essential to the success of these Programs. A major premise of the
Pathways Programs is that a good way to evaluate these potential job
candidates--i.e., students and recent graduates lacking prior work
experience in their field--is through a ``tryout'' in the workplace.
That is what the Pathways Programs are intended to provide--a tryout
for inexperienced workers who have recently undertaken or completed
educational programs. In addition, the Programs encourage agencies to
develop their Pathways Participants for careers in Government. We are
asking agencies to make an investment in these individuals through
mentorship, training, and developmental activities. Agencies should be
able to reap the benefits of that investment by retaining those who
successfully complete their Programs. This is why we have emphasized
that agencies must consider opportunities for conversion when deciding
how many people to hire through the Programs; there should be a close
correlation.
We also disagree that the work experience obtained through the
Internship Program or even through on-the-job experience in the Recent
Graduates Program would be sufficient to place those individuals on a
level playing field when seeking to obtain a job through the regular
competitive hiring process. The research we cited in our notice of
proposed rulemaking establishes that the workers with much more
experience are being hired to fill entry-level jobs in Government. In
any event, as the Executive order established, the Pathways Programs
are intended to compete effectively for students and recent graduates
and must also offer a clear path to civil service careers. For these
reasons, we are not accepting the union's suggestion.
The union also suggested that on-board employees would lose out on
career advancement opportunities to Pathways Participants who are
``fast-tracked'' into desirable positions. The union's concern is
misplaced. As an initial matter, the Pathways Participants are not
being ``fast-tracked'' into any Federal positions. Rather, they are
being exposed to the Federal workplace through on-the-job experience
that they otherwise would not be able to obtain. Indeed, rather than
being ``fast-tracked,'' they are actually being required to complete a
developmental program and demonstrate through the course of that
Program that they are capable of working in an entry-level Federal job.
In addition, though the Pathways Programs include excepted service
appointment authorities, OPM qualification requirements will apply to
the Recent Graduates and PMF Programs. For the Internship Program,
agencies will have the discretion, as they do under the current student
programs, to establish agency-specific qualification requirements or to
use OPM qualification requirements. Many agencies use OPM qualification
requirements for Interns. In short, either OPM or agency-specific
qualifications requirements apply to the Pathways Programs, and an
Intern, Recent Graduate, or PMF must meet the applicable qualifications
requirements in order to be converted into that job, just as he or she
would have to do if seeking the job through the competitive hiring
process.
With respect to the Recent Graduates Program, one union objected to
the requirement that Recent Graduates complete 2 years of service
before gaining eligibility to convert to the competitive service. The
union argued that the 2-year period would result in inequitable
treatment between people hired through the Recent Graduates Program and
those hired through the competitive process into the same job. The
difference primarily concerns at what point the individual would be
deemed an ``employee'' for purposes of appeal rights under 5 U.S.C.
chapter 75. We agree with the union and are modifying our regulations
to provide for conversion of Recent Graduates after completion of 1
year in the Program, subject to an exception where there are position-
specific training requirements that the individual must complete in
order to gain entry into the position or maintain the position.
Because the Executive order provides for conversion to the
competitive service, we are not bound by the practice that non-
preference eligibles hired into the excepted service only become
``employees'' for chapter 75 purposes after completing 2 years of
service. Instead, the Executive order gives OPM the authority to
implement the Pathways Programs, including the conversion rule, and we
are choosing to provide for conversion after 1 year, at which point the
individual would become an ``employee'' for purposes of chapter 75.
We are persuaded that a full 2-year period of evaluation is not
necessary. Because the Recent Graduates Program contains training,
mentoring, and career development requirements, we would expect and
encourage agencies to be closely monitoring Participant performance to
ensure the match with the agency is a good one throughout the entire
duration of the Program. It is better for all parties involved if the
agency makes a conversion decision within the first year. Subject to
the exception discussed below, a year is sufficient time for an agency
to evaluate a Participant's potential, and the agency should assign
work to the Participant within that year that allows him or her to
demonstrate the ability to perform the job. By allowing for conversion
to occur after 1 year in the Program, we provide for more equal
treatment among people hired into the same job, regardless of whether
they obtained the job through the Recent Graduates Program or the
competitive hiring process.
As mentioned, however, we recognize that agencies may have
position-specific training programs that new hires must complete before
they can actually begin to perform the duties of the job. In those
instances, we would permit agencies to develop a recent graduate
program that lasts longer than 1 year, up to a maximum of 2 years.
Agencies wishing to use this flexibility must include a provision in
their Pathways MOU that describes the training program, including its
length. Standard training given to every Federal Government employee,
or to every employee of the agency, will not trigger this exception to
the 1-year conversion period. Rather, the training must be position-
specific and serve as a prerequisite to entry to the job, or continued
performance in the job. We think this approach aligns the agency's
interest in having a sufficient period of time to evaluate a candidate
for conversion with the candidate's interest in obtaining training and
career development opportunities.
A union commented that the regulations do not include appropriate
standards for assuring that excessive numbers of employees are not
hired into the Pathways Programs without being converted to the
competitive service at the end of their appointment. It suggested that
the regulations should require each agency to identify its plan for
converting Pathways Programs
[[Page 28201]]
Participants to competitive service positions, and the number of each
appointment to be used (term and permanent). We agree with the union's
suggestion that agencies should conduct sound workforce planning to
maximize the benefit of the Pathways Programs, but we think the
specific suggestion offered by the union would be overly prescriptive.
Agencies have differing staffing needs and will use the Pathways
Programs in different ways. For example, some agencies may have very
robust internship programs, where the aim is to provide interns with a
good career development opportunity even though opportunities to
convert to permanent positions may be limited. The proposed regulations
strike an appropriate balance between agency flexibility and the need
to provide adequate conversion opportunities for employees.
Another union commented that Program Participants should receive
``due process'' before an agency decision not to convert them based on
unsatisfactory performance. The decision to convert or not convert
could be based on a host of reasons, including performance, budget,
agency priorities, etc. If by due process the union is suggesting that
Program Participants receive adverse action rights under chapter 75,
the law does not provide for such rights during the initial 2 years of
the excepted service appointment (except for preference eligibles who
have completed one year of service).
The union also objected to a provision in Sec. 362.106(c), which
allows Pathways Participants to convert non-competitively to a position
in the competitive service at another agency. The union argues that
this provision is inconsistent with the concept of the Pathways MOU
because there is no relationship between the receiving agency and OPM
or the appointee. This provision was intended to allow for Pathways
Participants who successfully complete their Programs, but for whom the
employing agency lacks budgetary resources or who is interested in a
different career path, to convert to a position at another agency so
that the Federal Government continues to benefit from the employing
agency's investment in the individual. While we continue to believe
that this is a valid policy consideration, the union's comment has led
us to re-consider the issue in the context of each specific Program.
With respect to the Internship Program, we are persuaded that the
rule that currently applies under SCEP allowing students to convert to
positions at other agencies should be retained. Because of uncertainty
about the length of time it will take a student to complete his or her
degree, certificate, etc., it is more difficult for agencies to conduct
workforce planning that accounts for Intern conversion. These
individuals are more at risk of losing conversion opportunities due to
factors beyond their control, or the control of the agency.
Accordingly, we do not think a change in the current rule is justified
at this time. We will continue to evaluate this rule, however, and are
open to considering changes to it at a later date. In any event, we
believe the practice of an Intern working for one agency and then
converting to another upon graduation is very rare under the current
SCEP.
We have decided, however, to adopt the union's suggestion with
respect to the Recent Graduates Program. One of the purposes of the
Recent Graduates Program is for the Recent Graduate to have an initial
``try-out'' period with an agency, where he or she can receive on-the-
job training, mentoring, and career development and the agency can
evaluate the potential of the Recent Grad for a career in Government.
We think it best that the Recent Graduate convert to a job at the
agency that oversaw this developmental process. It is also noteworthy
that the regulations (Sec. 362.304) allow Recent Graduates to seek a
Recent Graduates appointment at another agency during their period of
eligibility. This flexibility helps to address our original concern, as
Recent Graduates working at agencies with shrinking budgets and
personnel could seek an appointment at another agency at which they
could complete the Program.
Similarly, the PMF Program currently does not contemplate that a
Participant who completes the PMF Program would convert to another
agency. Rather, the current regulations require the employing agency to
convert the PMF if he or she is certified by the Executive Resources
Board (ERB). Though the requirement to convert each PMF has been
eliminated in these regulations, the rationale continues to hold.
Agencies will be inclined to convert PMFs who are ERB certified because
they have invested in their development for 2 years.
9. Waiver
The proposed regulations included a provision granting the OPM
Director authority to waive Pathways Program requirements under limited
circumstances. A union commented that the waiver is too broad. The
union proposes alternative language, namely that waiver should be
limited to extraordinary circumstances that would render an agency's
compliance with the regulations impracticable or impossible. OPM agrees
with the union's position that the waiver provision is too broad.
Rather than modify the language, as the union suggested, we have
removed the waiver provision entirely from the final regulation. OPM
believes elimination of the waiver provision will contribute to better
overall Program oversight and administration on the part of
participating agencies and that sufficient flexibility is offered by
other, narrower already existing waiver authorities available to the
OPM Director.
10. Veterans' Preference
OPM regularly consulted with veterans' service organizations during
the development of the Pathways Programs, prior to publication of the
proposed regulations. The proposed regulations make clear that
veterans' preference rules apply to the Pathways Programs.
One union cited favorably the steps OPM has taken to safeguard
veterans' preference in the regulations. It nonetheless commented that
application of veterans' preference in the excepted service is not
transparent and the ability to monitor and enforce application of
veterans' preference would be compromised under the new Schedule D. As
our regulations make clear, veterans' preference applies to the
excepted service, Schedule D is no exception, and ensuring that
agencies are properly applying veterans' preference will be a key
aspect of our oversight of the Pathways Programs.
A Senator suggested that additional guidance and oversight
mechanisms are needed to ensure agency compliance with veterans'
preference. The regulations make clear that veterans' preference
applies to the Pathways Programs. OPM is also considering further
guidance to agencies on how to manage the application and selection
process for the Pathways Programs in a manner that is consistent with
veterans' preference. As mentioned above, we believe the regulations
provide sufficient oversight mechanisms to guard against agency abuse.
A union commented that the Pathways Programs erode veterans'
preference by excluding veterans who fail to meet the eligibility
criteria for the Programs from applying for positions in the Program.
We disagree. The President is authorized by law to make necessary
exceptions to the competitive procedures, and he has appropriately done
so here. Moreover, OPM has taken appropriate steps to ensure that the
[[Page 28202]]
Pathways Programs are fair to veterans. These include requiring that
information about Pathways opportunities be posted; specifying that
veterans' preference rules apply to the Pathways Programs; and allowing
certain veterans up to 6 years from the time of graduation (rather than
the standard 2 years) to participate in the Recent Graduates Program.
As discussed here, OPM has also included several significant oversight
mechanisms in the regulations to ensure that agencies are properly
using them as a supplement to competitive hiring, rather than a
substitute for it.
One agency commented that it supported veterans' preference but did
not believe that application of the preference should disadvantage
current students or recent graduates. One agency wanted to know how
veterans' preference would apply. Agencies are required to follow part
302 procedures (which includes the application of veterans' preference)
when making any Pathways appointment, even if to do so disadvantages
current students or recent graduates.
One agency wanted to know how the application of veterans'
preference would affect the consideration of priority reemployment
candidates under the Pathways Programs. The Pathways Programs do not
change the requirements. Agencies must follow the order of
consideration in part 302 when filling jobs under the Pathways
Programs.
One agency suggested that OPM revisit the application of veterans'
preference under the Pathways Programs because the agency believes OPM
combined competitive and excepted service procedures for veterans'
preference. The same agency also expressed concern that providing
veterans' preference under Pathways gives the perception that veterans
have an overall advantage and wanted to know how agencies would apply
veterans' preference. The Veterans' Preference Act of 1944, as amended,
applies to positions in the excepted service. OPM does not have the
discretion to except Pathways from this statutory requirement, nor
would it agree with an exception as a matter of policy. Further, many
veterans may be availing themselves of the GI Bill to complete an
education. They deserve to have their preference applied should they
seek a Federal job via Pathways. Part 302 contains the regulatory
requirements and procedures for the application of veterans' preference
in the excepted service.
One agency wanted to eliminate from consideration preference
eligibles that do not submit proper documentation. OPM will not adopt
this suggestion. Agencies are required to exercise due diligence in
affording veterans' preference to eligible applicants and to establish
policy and procedures that follow existing regulations. This same
agency suggested that OPM add a requirement to the final rule stating
agencies are not required to accept late applications from veterans'
preference eligibles. We did not adopt this suggestion because it is
not necessary. The requirement to accept late applications from 10-
point preference eligible veterans as provided in Sec. 332.311 does
not apply to filling positions in the excepted service.
11. Age Discrimination
One union questioned whether the Pathways Programs are
discriminatory, claiming that the Programs favor younger applicants.
The union's concerns are misplaced. First, we emphasize that the
intention of these regulations is to provide agencies with options to
employ as part of an overall recruiting and hiring strategy that will
result in a workforce drawn from all segments of society, including
employees of all ages. Second, the Pathways Programs themselves are
open to all students and recent graduates, regardless of age. Eligible
students and recent graduates will include older individuals who left
the workforce and returned to school to prepare themselves for new
careers, as well as those who obtained degrees while they took time off
from their careers to raise a family. Older veterans who use the new GI
Bill to further their education after completing their military service
are also eligible to participate in the Pathways Programs.
In short, the Pathways Programs were not intended to discriminate
based on age, nor should they have that effect. To the extent that an
individual believes that an agency is misusing the Programs in order to
discriminate against older applicants, he or she may pursue available
legal remedies to address such misuse.
12. Miscellaneous
The provisions for temporary assignment under the Intergovernmental
Personnel Act (IPA) in Sec. 332.102 contain a definition of
``employee.'' PMFs, SCEPs, FCIPs and VRAs are included in the
definition of employee as examples of excepted service employees
eligible under the IPA. OPM removed these excepted service examples
contained in 332.102 in the proposed regulations because most of them
will become obsolete with the publication of the final Pathways rule.
One agency suggested that OPM should replace the examples with the new
Pathways Programs rather than deleting the explanatory language
altogether. We are not adopting this suggestion because we believe the
definition is adequate without examples.
One agency suggested OPM create a special Program identifier code
to track Pathways Participants. OPM does not believe such a code is
necessary at this time. Each Pathways Program has its own unique
appointing authority that can be used to track Participants and Program
usage. We will evaluate over time whether this approach is adequate.
One agency asked whether the Pathways Programs will be centrally
funded from a source separate from the agency's approved appropriation.
The Pathways Programs are not centrally funded. Agencies must fund
their own Pathways Programs.
One agency recommended that OPM establish a Pathways alumni group
to help with recruitment and mentoring. We will consider this idea. In
the meantime, we note that agencies are free to establish these groups
themselves.
Several agencies asked OPM to clarify whether the Administrative
Careers with America (ACWA) testing is required when filling positions
under the Recent Graduates Program and whether OPM will be developing
assessment criteria for positions filled through the Recent Graduates
Program. ACWA testing is not specifically required. Rather, agencies
must use a valid and job-related assessment for all positions
(including those formerly covered by ACWA). Agencies can choose to use
the OPM assessment or other valid assessments.
Responses to Comments on the Regulations
1. Excepted Service (Part 213)
One agency suggested that OPM amend the final rule by placing the
regulatory requirements for the administration of the Pathways Programs
in part 213 rather than part 362 because it believes it is confusing to
have the requirements for the administration of the Pathways Programs
in part 362. We did not adopt this suggestion because we believe it is
clearer to maintain the specific Program requirements of the Pathways
Programs separate from the broad regulatory requirements for the use of
excepted schedules that are contained in part 213. Additionally, the
current regulatory requirements for use of the PMF Program are
contained in part 362, and we decided that it would be best to have
[[Page 28203]]
requirements for each of the three Pathways Programs in the same
section of the regulation.
One agency requested clarification regarding an agency's ability to
continue to simultaneously fill the same position in both the
competitive and excepted service (via Pathways). As discussed above,
using Pathways is similar to how agencies currently use the SEEP under
Schedule A or the Schedule A for hiring people with disabilities. The
Executive order allows the positions to be filled in the excepted
service, and then converted to the competitive service at a later date.
In general agencies have broad authority to fill a position with any
applicable authority, regardless of whether doing so places the
position in the excepted service.
One agency suggested we clarify the intent of Sec. 213.102(c)(2)
pertaining to targeted recruitment. Section 213.102(c)(2) refers to
OPM's authority to remove positions from the competitive service so
they can be filled in the excepted service under authorities that
target specific groups such as students, recent graduates or people
with disabilities. Targeted recruitment can be conducted so long as it
is done so consistent with any applicable law and regulations.
Several agencies commented and expressed concern regarding
temporary appointments for the Internship Program. One agency noted
that ``temporary appointment'' is defined as not-to-exceed 2 years. The
same agency asked if temporary appointments would be administered under
part 316. Several agencies also expressed concern regarding the impact
that provisions regarding service limits and restrictions on refilling
positions in Sec. 213.104(b)(1) and (2) would have on their ability to
use temporary Interns under Pathways. Temporary appointments in the
excepted service, the time limits on them, and exceptions to the time
limits remain unchanged. The Pathways Programs are covered by excepted
service provisions in both Sec. 213 and Sec. 302, not under Sec.
316. By definition in both the competitive and excepted service,
temporary appointments are those initially made not to exceed 1 year.
Agencies can extend a temporary appointment up to 1 additional year
without OPM approval. Because of the nature of temporary intern
appointments and the need to accommodate a student's academic
curriculum, they are not subject to the time limitations in Sec.
213.104 as provided in paragraph (b)(3)(ii) of that section. The only
change made to Sec. 213.104 is the inclusion of the newly established
Schedule D.
2. Employment in the Excepted Service (Part 302)
Our proposed regulations include some changes to part 302,
governing employment in the excepted service. Agencies submitted
several suggestions on part 302. One agency wanted to know how
following part 302 would affect priority reemployment candidates. When
filling jobs under the Pathways Programs, agencies must follow the
order of consideration in Sec. 302.304, that requires consideration of
all qualified candidates on its priority reemployment list before
considering other candidates.
One agency suggested OPM amend part 302 to allow, but not require,
the use of category rating selection procedures so agencies can
consider candidates based on criteria other than veterans' preference
or reemployment priority eligibility. OPM is not adopting this
suggestion. Under Sec. 302.105, agencies may adopt category rating-
like selection procedures, as long as those procedures provide veterans
with at least as much preference as they would otherwise receive under
the other criteria in part 302. Another agency suggested that OPM
modify the final rule to include Schedule D in the list of exemptions
from the appointment procedures of part 302 in order to allow agencies
to apply veterans' preference as far as administratively feasible. OPM
did not adopt this recommendation for several reasons. Excepted service
positions are approved for exemption from the appointment procedures of
part 302 because the circumstances and conditions required to fill the
positions cannot be accommodated under the regulations. Pathways
positions do not meet this requirement because agencies are required to
provide information on Pathways job opportunities and to identify its
excepted service procedures for Pathways Programs applicants in
accordance with part 302. A central objective of the Pathways Programs
is to establish Federal-wide Programs with consistent policies and
procedures. Additionally, the exemption from the appointment procedures
of part 302 does not relieve agencies from applying veterans'
preference as required by law; rather it allows each agency filling
these certain types of positions to determine what procedures it will
use to afford eligible veterans their preference in a positive manner.
For these reasons, it would not be appropriate to exempt Pathways
Programs appointments from the appointment procedures of part 302.
3. Conversion to Career or Career-Conditional Employment (Part 315)
Part 315 of the proposed regulations addresses conversion to the
competitive service. Several agencies requested clarification of Sec.
315.713, Conversions based on service in a Pathways Program, for
Pathways Participants, particularly Interns, converted to the
competitive service. We believe the requirements in Sec. 315.713(b),
are clear, i.e., people lacking the 3-year service requirement for
career tenure will be converted to a career-conditional appointment.
However, those requirements must be applied according to the provisions
of Sec. 315.201, Service requirement for career tenure. Certain types
of service are creditable toward career tenure as identified in Sec.
315.201(b), Creditable service. Service in any Pathways Program is
creditable for career tenure. Because the service requirement for
tenure is 3 years, most Pathways Participants will convert to career-
conditional unless they have previously attained tenure (completed 3
years of creditable service) in which case those individuals should be
converted to a career appointment.
Several agencies requested clarification of Sec. 315.713,
Acquisition of competitive status. We have clarified the regulation to
specify that competitive status is acquired upon completion of the
probationary period. Time spent on any Pathways appointment is
creditable toward completion of the probationary period requirement for
the competitive service. Recent Graduates and PMFs attain competitive
status immediately upon conversion, i.e., they have completed their
probationary period. Because some Interns can be converted after
completing their educational requirements and a minimum of 640 hours of
work experience, they will be required to complete the requirements for
probationary period after conversion.
One agency commented that some agencies have statutory authority to
establish probationary periods of more than a year. They requested a
Pathways provision that would allow those agencies to apply the longer
probationary periods to Pathways conversions. We did not adopt this
suggestion. Agencies with statutory authority to require probationary
periods in excess of 1 year generally have an agency-specific
appointing authority under the same statute. The Pathways Programs fall
under the provisions of title 5. The Pathways Programs authorities
cannot be used under other statutory authorities.
[[Page 28204]]
Pathways Programs (Part 362)
A. General Provisions (Part 362, Subpart A)
Part 362 of the proposed regulation set forth the requirements for
each of the Pathways Programs. The majority of comments we received
were generally supportive of the creation of the Pathways Programs and
with the overall implementation of the Programs through our
regulations. We received many comments, however, about specific
regulatory provisions.
Several agencies commented that the structure of the proposed
regulations was not consistent in addressing requirements such as trial
periods, performance management, and progress evaluation information
for each Pathways Program. We agree that some modification for clarity
is in order. For example, we placed the performance and progress
evaluation requirements in subpart A of the final rule, as they apply
to each of the three Programs.
One agency suggested rewording Sec. 362.101(c), which is the
requirement that agencies provide for equal employment opportunity in
the Pathways Programs, consistent with merit system principles and
applicable law. The language we proposed is a more accurate reflection
of law regarding equal employment opportunity, and we are retaining the
language as it was written.
1. Definitions (Sec. 362.102)
Several schools suggested we specify schools of public policy and
schools of international affairs in the definition of a ``qualifying
educational institution'' in Sec. 362.102, Definitions, as examples of
graduate or professional schools. We did not make this change, because
we did not wish to highlight one type of qualifying educational
institution to the exclusion of other types.
One agency suggested we redefine ``agency'' to include the
Government Printing Office (GPO) in accordance with 5 U.S.C.
2302(a)(2)(C). OPM agrees that the GPO should be included in the
definition of ``agency'' and modified the final rule accordingly.
Several agencies suggested OPM provide a definition of
``certificate program'' for the purpose of eligibility under Pathways.
We agree and have defined, in Sec. 362.102, ``certificate program'' to
mean ``postsecondary education, in a qualifying educational
institution, equivalent to at least 1 academic year of full-time study
that is part of an accredited college-level, technical, trade,
vocational, or business school curriculum.''
One agency asked OPM to modify the final rule by adding
apprenticeship programs registered with the Department of Labor to the
definition of ``qualifying educational institution.'' OPM is not
adopting this suggestion because apprenticeship programs focus on
requirements for on-the-job experience rather than education and they
are not qualifying educational institutions for the purposes of the
Pathways Programs. The Pathways Programs focus on formal education.
Nonetheless, the Internship Program is open to students in qualifying
technical or trade schools, as is the Recent Graduates Program upon
completion of a qualifying technical or trade program.
2. Memorandum of Understanding (Sec. 362.104)
OPM made edits to this section in consideration of the considerable
comments previously discussed. For example, we included new definitions
for ``advanced degree'', ``certificate program,'' and ``Participant
Agreement'' in Sec. 362.102. We clarified agency requirements in Sec.
362.104 by reordering and renumbering the MOU requirements. Other
changes are addressed in the applicable sections of the regulations.
On-Boarding Process (Sec. 362.104(c)(8))
One agency commented that the on-boarding process should be removed
as a MOU requirement because on-boarding processes are different among
organizations, processes change from time to time due to requirement
changes, etc. The agency recommended that OPM amend the final rule by
placing the on-boarding process under agency commitment. We agree with
this suggestion and modified the final regulations in Sec.
362.104(c)(8)(iv) to provide an adequate on-boarding process for each
Pathways Program.
Pathways Programs Officer (Sec. 362.104(c)(9))
Several agencies suggested OPM eliminate the grade requirement for
the Pathways Programs Officer (PPO) in Sec. 362.104(a)(1)(iv)(A) on
the basis that agencies should have the authority to determine the
grade level and be held accountable. OPM is not adopting this
suggestion. Given the duties and responsibilities of the agency PPO,
OPM believes GS-12 is the appropriate minimum grade level.
Participant Agreement (Sec. 362.106)
We received several agency comments on the Participant Agreement
(PA) to be executed with all Pathways Participants.
Several agencies suggested that OPM remove the PA from the MOU and
place it in each Pathways Program subpart of the regulations. We agree
that it should be removed from the MOU, but disagree that it should be
removed from subpart A of the regulations. The PA is a requirement for
all Pathways Participants and is appropriately placed in subpart A of
the regulations. It is clearer, though, to set it out in a separate
section, rather than including it in the MOU section. Accordingly, we
have renamed it the Participant Agreement (instead of Pathways
Agreement) and placed it in a separate section (Sec. 362.106,
Participant Agreement). The remaining subpart A sections were
renumbered accordingly.
One agency suggested we require agencies to file the PA in the
Participant's Official Personnel File (OPF). OPM is not adopting this
suggestion. The PA must be maintained while the Pathways Participant is
in the applicable Program. However, once the Participant completes the
Program and is separated or converted to a position in the competitive
service, the PA is no longer applicable. Therefore, we do not believe
it is appropriate to add a requirement that it be filed in the OPF.
The same agency commented that the regulations should provide a
similar level of detail as is provided for the Pathways Programs
Officer with respect to who could execute and approve the PA, and that
the requirements for the PA be stipulated in the MOU. OPM does not
believe any changes to the final rule are necessary. Agencies have
discretion to determine who signs a PA. Participant Agreement
requirements are now contained in Sec. 362.106.
Several agencies suggested more detailed requirements for the PA.
For example, one agency suggested adding certain requirements to the
Participant Agreement an Intern must meet to continue in the Program,
such as Grade Point Average (GPA) or a statement of good academic
standing and performance ratings of Fully Successful or above. Some
agencies supported removal of the requirement for a 3-way agreement
with the Participant, the agency, and the Participant's educational
institution, while others do not think the 3-way requirement should be
removed. Another stated that it was confusing to have a choice and the
requirement should be either kept or removed. Several agencies asked if
they would have the flexibility to design Participant Agreements based
on agency need and several comments expressed concern over the workload
the PA will create.
[[Page 28205]]
The Participant Agreement is another administrative requirement
that OPM believes is necessary for the successful administration of the
Pathways Programs. The regulations provide the minimum requirements of
the PA. However, agencies have discretion to tailor PAs for each
Pathways Program or even for individual organizations as necessary. An
agency may continue to use a 3-way agreement, and it may or may not add
GPA requirements for continuation in the Internship Program. We
understand the challenges involved with identifying specific agency
requirements and creating the necessary Participant Agreements.
However, once developed, the PAs provide a powerful communication
mechanism that ensures Program Participants understand their
appointment provisions, manages expectations of all parties concerned,
and identifies expectations for successful completion of a Pathways
Program for both the Program Participant and manager.
One agency asked if agencies are obligated to enter into an
agreement with the educational institution if the school or college
required such an agreement. If an agency wishes to enter into a
relationship with an educational institution that requires an
agreement, the agency has the discretion to do so.
One agency does not believe the Participant Agreement should be
required for Interns hired under the temporary provisions of subpart B.
We disagree. Interns hired on a temporary basis should have the same
benefit of well-defined expectations as any other Pathways Participant.
Several agencies suggested we provide them with a template
Participant Agreement. OPM will provide a PA template for agencies to
use at their discretion.
3. Filling Positions (Sec. 362.105)
Appointments (Sec. 362.105(c))
One agency suggested including temporary appointments in section
Sec. 362.105(c) of the regulations. We did not adopt this suggestion.
The use of temporary appointments is applicable to the Internship
Program only and is addressed in subpart B. Temporary appointments
cannot be made under the Recent Graduates or PMF Programs.
Citizenship (Sec. 362.105(e))
One agency commented that the citizenship requirements were
confusing. This paragraph is to ensure that agencies meet Government-
wide requirements for non-citizen hiring and do not inadvertently
convert a non-citizen to the competitive service. As with excepted
service hiring in general, the law permits agencies to hire non-
citizens under the Pathways Programs provided they meet applicable
immigration requirements.
Length of Appointments (Sec. 362.105(g))
Several agency comments requested clarification in this area. One
agency asked whether the length of appointment for Recent Graduates and
PMFs is to be calculated using consecutive or calendar days. Because
calendar days are consecutive, we assume the commenter meant business
days or calendar days. Appointments for Recent Graduates and PMFs are
calculated by counting consecutive calendar days. Agencies may extend
the appointment of a Recent Graduate or PMF for no more than an
additional 120 calendar days.
Several agencies asked questions about how the 2-year appointment
period would be applied for individuals hired under the Internship
Program. The 2-year appointment limit does not apply to individuals
hired under the Internship Program. Length of appointments for Interns
is addressed in subpart B.
Terminations (Sec. 362.105(h))
Several agency comments suggested the regulations should state
reasons for terminating Pathways Participants, such as not maintaining
good standing with their school, or failure to meet the conditions of
the Participant Agreement. We are not including these suggestions in
the final regulations. This paragraph is simply to inform agencies that
Pathways Participants can be terminated in accordance with any
applicable laws and regulations pertaining to the excepted service. In
response to one agency comment, we added the word ``including'' before
``for misconduct, poor performance, or suitability'' to be clear that
we are not attempting to restate the entire universe of reasons that an
individual could legitimately be terminated. Agencies are expected to
take appropriate personnel actions for any Pathways Participant who is
not converted to the competitive service at the end of his or her
appointment.
4. Conversion to the Competitive Service (Sec. 362.107)
One agency suggested we modify Sec. 362.107 specifying that
conversions must be made in accordance with the applicable Programs. We
have made this modification to the final rule.
Another agency suggested OPM enumerate the exemptions of the
Priority Reemployment List in Sec. 362.107. The Priority Reemployment
List (PRL) is a mandatory priority placement program for certain
current and former excepted service employees to excepted service
positions covered in part 302 and is not applicable here. Conversions
from a Pathways Program are made to competitive service positions.
Because the PRL does not apply to competitive service positions, an
exemption is not necessary.
One agency requested that OPM provide the statutory citation that
allows a term employee in the competitive service to be
noncompetitively converted to a permanent position in the competitive
service. The authority to convert from a Pathways Program term to
permanent competitive service appointment is provided in Executive
Order 13562, section 6, paragraph (c), which was issued under the
President's broad statutory authority over the civil service.
5. Program Accountability and Oversight (Sec. 362.107)
In the proposed regulations, Program accountability and oversight
information was contained in a single regulatory section, Sec.
362.107. In response to a number of comments seeking further clarity on
these provisions, we have now addressed each topic in its own
regulatory section. Section Sec. 362.108 now addresses program
oversight and Sec. 362.109 addresses agency reporting requirements.
One agency asked if they should estimate their Pathways hires on a
fiscal or calendar year basis. The same agency asked about a process
for revising their estimates should it need additional Pathways hires.
One agency suggested agencies be allowed to give an approximate number
of hires under the Pathways Programs, but not be committed to staying
within the initial proposed count.
The reporting requirements for Pathways are two-fold: (1) report an
estimated projected use of the Pathways Programs for workforce
planning; and (2) report actual Program usage for the previous year.
Agencies will be required to report to OPM all positions that they
intend to fill through Pathways appointments. The reports serve as an
important planning and oversight tool. We anticipate requiring this
data on a calendar year basis. We will provide additional guidance on
the specific form of the reports we wish to receive. This guidance will
allow for agencies to review and revise their projections for a
particular year if the need arises.
[[Page 28206]]
6. Transition (Sec. 362.108)
Several agencies suggested OPM provide regulatory guidance on how
current student employees and PMFs would transition into Pathways. One
agency suggested maintaining the current SCEP conversion authority
through April 30, 2013, to allow current SCEPs who graduate before the
end of 2012 to complete SCEP work experience and other agency-specific
conversion requirements. The agency stated that April 30, 2013, would
provide a 120-day conversion period and allow sufficient time to obtain
necessary documentation of graduation with the required overall GPA for
students graduating in December 2012. The same agency suggested the
regulations permit current SCEPs to be converted to the new Internship
Program with full credit for their prior SCEP work experience.
OPM appreciates the many questions concerning conversion to the new
Programs. We will issue comprehensive guidance for the transition of
current STEP, SCEP, and PMF employees to the new Pathways Programs
following publication of the final rule. We will consider the agency's
comments as we craft that guidance. In addition, as mentioned above, we
have provided for a 6-month transition period for the Internship and
PMF Program. We cannot, however, adopt the agency's suggestion to
retain SCEP through April 2013. By virtue of the executive order, the
authority to appoint under SCEP is eliminated on the effective date of
these regulations.
B. Internship Program (Part 362, Subpart B)
The rules governing the Internship Program appear in subpart B. A
union expressed concern that the Internship Program would undermine the
competitive hiring process by enabling an agency to hire an Intern who
had completed degree requirements but not yet graduated and then
subject the Intern to a lengthy trial period with the potential for
termination at the end of the period. The union misreads the scope of
the Program. An individual may serve as an Intern only while a student.
In order to be eligible for conversion, the individual must accumulate
640 work hours (up to 320 of which may be waived under certain
circumstances) while a student. The union's hypothetical could not
occur because the Intern would not be able to obtain the requisite
number of work hours between completion of degree requirements and
graduation.
For these reasons, we decline to adopt the union's additional
suggestion that individuals who have less than a half semester of
coursework before graduation should be eligible only for the Recent
Graduates Program. The individual at that point is still a student; he
or she may or may not graduate on schedule, and even if he or she does,
the Intern may enroll in another academic program and maintain
eligibility for employment as an Intern. It is not uncommon, for
example, for students who graduate from college to immediately begin a
master's or professional degree program.
The union also argues that internship positions should be limited
to entry-level positions up to grade 9 or to grade 11 for science,
technology, engineering, or mathematics positions. The union notes that
this grade limitation applies in the Recent Graduates Program. Another
union also argues for grade limits on Internship Program appointments.
Several academic commenters support eliminating the grade limits on
Recent Graduates and, presumably, approve of the absence of limits on
Interns. Grade limitations on Interns would be a change from the
current Student Career Experience Program (SCEP), under which interns
are paid according to their qualifications. OPM is not persuaded that
it should depart from the existing SCEP rule. Agencies need to be able
to compete with the private sector for sought-after students, including
those in graduate and professional degree programs.
The union also alleges that a particular agency is currently
abusing the SCEP, and that the Internship Program regulations would not
prevent the type of abuse being alleged. Without commenting on the
particulars of the allegations, we note that each agency would be
operating its Internship Program under the oversight of OPM, pursuant
to an MOU entered into with OPM, and subject to a cap on their use of
the Programs. Any further comment would be outside the scope of the
regulation.
Another union commented that the duties of a position to which an
Intern is appointed should relate to either the Intern's academic or
career goals. We agree with this commenter and have modified the
regulation to reflect this requirement. In addition, in response to
agency comments, we have modified the regulation to provide agencies
the discretion, especially when filling positions that require the
completion of specific education, to require degree relatedness.
The union also objected to Sec. 362.204(c) insofar as it allows
agencies to waive up to 320 of the 640 work hours requirement for an
Intern to convert. The union contends that the criteria for waiver are
vague and subject to abuse. A good government group, however, commented
in favor of the waiver provision. We agree with the good government
commenter. This waiver provision mirrors the existing provision under
SCEP, which has not been problematic. Furthermore, we think that the
waiver option promotes an incentive for Interns to excel academically
and in the workplace, to the benefit of the Government.
The majority of agency comments support the concept that, upon
completion of the Internship Program, an Intern should be converted to
a position directly related to the Intern's academic training and
intern work experience. Two agencies, however, suggested that removal
of the requirement was inconsistent with the Program. We disagree with
these two commenters. A large majority of General Schedule positions do
not have a positive education requirement. Therefore, Interns could
qualify for conversion to a position at the appropriate grade level
based on their general educational background alone. The agencies will
have invested in the development of Interns, and it is in their
interests, as well as the taxpayers', to take advantage of that
investment by having the Intern continue to work for the agency.
Accordingly, though we would encourage agencies to conduct workforce
planning and hire interns into a field for which they ultimately have a
need to fill permanent positions, it is consistent with the Internship
Program to allow agencies lacking a permanent position related to the
Intern's field of study and Intern work experience to convert high
performing Interns to another career field for which the Intern
qualifies. Additionally, time spent on the Internship appointment
qualifies as work experience for purposes of evaluating an Intern's
qualifications for a particular position.
One agency noted a disparity in having a grade limitation on Recent
Graduates (i.e., people with degrees) while no similar limitation
exists for Interns (i.e., people working toward a degree). The
different rules recognize the different purposes of the Programs. The
Internship Program is aimed at recruiting students--including those at
the highest levels of study--to work in the Federal Government. In
recognition of this purpose, grade levels are not currently limited
under SCEP. This allows the Government to compete, for example, for
highly educated researchers who are finishing their doctoral programs.
The Recent
[[Page 28207]]
Graduates Program, on the other hand, is focused on individuals without
prior work experience in their chosen field, in recognition of the
difficulty they have in securing a Federal job through the competitive
hiring process. A grade-level limitation is therefore appropriate for
Recent Graduates because the premise is that they lack prior related
work experience. Their grade levels are thus tied to the levels for
which they could qualify based solely on their education.
One agency suggested OPM add a mentor requirement to the Internship
Program rules. OPM is not adopting an across-the-board requirement
because some Interns serve for very short periods of time. However, we
included a requirement to identify mentorship opportunities in the
Participant Agreement with Interns. Moreover, we encourage agencies to
provide mentors to the Interns it expects to employ for lengthier
periods of time (for example, longer than 12 weeks).
One agency requested that OPM add an authority to allow agencies to
convert an Intern serving on a temporary appointment to an Intern
appointment. The regulations allow any qualified student to be
appointed under the Internship Program on either a temporary (not to
exceed 1 year) or time limited (more than 1 year) basis. An agency
wishing to change a temporary Intern to an Intern appointment would
simply reappoint the individual under Sec. 213.3402(a).
Several agencies and a union suggested OPM define the phrase
``meaningful developmental work.'' OPM is not adopting this suggestion
because we do not believe it is appropriate to provide a specific
definition in the regulation. The phrase broadly refers to career-
related work experience that will enable the individual to successfully
work upon conversion to the competitive service. By not adopting a
specific definition, we allow agencies and Pathways participants to
determine the nature of the developmental work appropriate to the
position. In exercising this discretion, agencies should not assign, as
an Intern's primary duties, simple administrative or clerical tasks
such as scanning a document or filing documents which do not support
the Intern's career goals. We would expect agencies and Interns to
discuss the nature of their work in connection with executing the
Participant Agreement.
Several agencies suggested that Intern appointments be made with a
specific not-to-exceed (NTE) date. We are not adopting this suggestion
because the appointment authority permits noncompetitive conversion to
a permanent job in the competitive service, and some Interns will not
be treated as time-limited.
An agency commented that the use of the word ``Intern'' causes
confusion since Interns are typically hired to work for no salary or a
small stipend to gain work experience. OPM does not agree or share this
concern. The Student Employment Educational Program (SEEP) co-existed
with part 308, Volunteer Service, for many years and we see no reason
why the Internship Program cannot continue to do so. Additionally,
volunteer service under part 308 can be considered creditable service,
under Sec. 362.204, toward an Intern's work requirement for conversion
to the competitive service.
Several other agencies expressed concern over losing the ability to
use unpaid interns. OPM is not revoking the authority to use student
volunteers in part 308.
Several agencies asked whether Interns could be converted to the
Recent Graduates Program. The Executive order does not provide
authority to convert an Intern to the Recent Graduates Program.
Agencies should provide Interns with appropriate, related work
experience and training. Upon completion of their education and
successful performance of the duties of the Intern position, agencies
should convert Interns to competitive service positions. Interns could
also apply to the Recent Graduates Program upon completing their
educational program requirements.
One agency asked that we clarify the distinction between an
Internship for a high school student versus one for a post secondary
school student, to address work schedules, appointment limitations and
work assignments. There is no difference in the appointment or the
Program; however, work schedules, assignments, etc., may vary. The
Internship Program is flexible enough to allow agencies to tailor the
Program to meet its needs. Agencies may appoint any qualified student
to the Internship Program on either a temporary or time limited basis.
Appointment limitations, work schedules and work assignments and
expectations are required to be addressed in the Participant Agreement.
Several agencies expressed concern that OPM is limiting agencies
use of temporary Interns. One agency suggested language to modify the
final rule for clarity. OPM has modified the final rule to clarify the
appropriate use of temporary Interns. The Supplementary Information
accompanying the proposed regulations simply reminded agencies to limit
their appointment of temporary Interns because the intent of the
Program is for agencies to develop a pipeline of talent for important
workforce needs. Agencies may hire temporary Interns as they deem
necessary, though, in accordance with agency Pathways hiring
procedures, and any limitations that may be established by the
Director.
One agency suggested OPM rename the Internship Program the
``Current Student Fellowship Program.'' OPM is not adopting this
suggestion because we believe ``Internship Program'' is a better,
commonly understood label for the Program.
1. Definitions (Sec. 362.202)
Several agencies suggested a more specific definition of
``student.'' Some agencies proposed OPM limit the Internship Program
only to students attending classes for certain time periods, e.g.,
those who have completed at least one academic semester. We are not
adopting these suggestions. The proposed definition of student is
familiar, as it is adapted from the current SEEP, which has served the
existing student programs well for many years.
2. Filling Positions (Sec. 362.203)
One agency suggested OPM modify the regulations to include
language, similar to language currently in the SEEP regulations,
regarding the use of training funds for Pathways Participants. OPM is
not adopting this suggestion. We are not attempting to alter the
availability of any of these benefits. We have simply eliminated some
provisions currently contained in the SEEP regulations that restate
requirements or provisions contained in other CFR parts, such as those
pertaining to the use of training funds, tuition assistance, travel and
transportation, etc. This avoids lengthy changes to sections of the CFR
when a particular regulatory requirement changes.
A school asked whether prior Federal service can be used by
agencies to determine qualifications and grade-level limitations for
individuals appointed to the Internship Program. Yes. Agencies are
required, though, to establish procedures on how they will assess
applicants for any Pathways Program.
Eligibility (Sec. 362.203(b))
An agency suggested OPM add a requirement that a student be in good
academic standing to be eligible for an Internship appointment. We have
not historically expressly stated a good academic standing requirement
and are concerned that by introducing it now,
[[Page 28208]]
there will be confusion about what it means. It is our expectation,
though, that agencies would only appoint students who are adequately
progressing toward completion of their academic program.
Qualifications (Sec. 362.203(c))
One agency suggested OPM modify the final rule to require students
to qualify for the Internship Program based only on education. Though
we expect that will be true for the vast majority of Interns, we are
preserving the rule under SEEP that a student's prior experience may
also be taken into account in determining his or her qualifications in
connection with an Intern appointment. That approach has been used
successfully for decades. Additionally, the Internship Program will be
subject to OPM oversight, including potential caps on the number of
Program Participants and OPM's authority to revoke an agency's MOU and
thus prohibit it from using the Programs.
Another agency asked OPM to modify the regulations to include a
provision allowing agencies to develop their own qualification
requirements for the competitive service position to which an Intern
converts. We are not adopting this suggestion because the OPM
Qualification Standards apply when filling any competitive service
position and agencies are responsible for the training and development
of Interns. Pathways Participants who meet the OPM Qualification
Standard for a particular position are eligible for conversion.
Appointments (Sec. 362.203(d))
Several agencies submitted comments asking OPM to clarify the
appointment time limit for Interns. In addition, several agencies
confused appointment time limit with the requirement that the
Participant Agreement clearly state an expected NTE date. Interns can
be appointed two ways: as a temporary employee (NTE 1 year); or for a
period of more than 1 year. Appointments made for more than 1 year do
not require a NTE date. However, the Participant Agreement requires an
expected end date by which the student will complete all educational
requirements of the degree.
Promotion (Sec. 362.203(e))
Several agencies suggested OPM add instructional language to the
regulations stating that the promotion of a temporary Intern is
documented as a conversion to a new temporary appointment with a
requirement the NTE date remain. OPM is not adopting this suggestion.
The service limits and restrictions in Sec. 213.104 on refilling
excepted service positions do not apply to the appointment of temporary
Interns. Therefore the original NTE date is not applicable.
Classification (Sec. 362.203(f))
One agency commented that the requirement to classify positions to
the 99 series is problematic because there is no distinction between
one and two-grade interval positions. We disagree.
Using the -99 series for one and two-grade interval positions
affords agencies the greatest amount of flexibility when hiring
individuals into developmental type programs. Because these individuals
are ``trainees'' they are not restricted to the types of work that is
normally associated with a specific series. In addition, an entire job
family (e.g., 300) of positions will be available at the time of
conversion based on the individual's qualifications and the agency's
needs. Agencies can differentiate between one grade and two-grade
interval positions based on the education level of the employee (e.g.,
below Baccalaureate level, one grade interval), based on the journeymen
level of the target position (e.g., GS 12 full performance level, two
grade interval), documented advancement opportunities (career ladders)
in the participant's agreement.
Another agency suggested we add the requirement to classify wage
grade intern positions to the 01 series. We are adopting this
suggestion and have modified the regulations. We did not intend to
limit Internship appointments to General Schedule positions; therefore
we are clarifying that agencies can make Internship appointments to
either General Schedule or Wage Grade positions.
Schedules (Sec. 362.203(g))
Two agencies commented on work schedules. One suggested OPM amend
the final rule by specifying the number of hours a student may work. We
did not amend the final rule because the regulations specify an Intern
may work a full or part-time schedule. Interns agreeing to work a full-
time schedule must work 40 hours per week. Part-time schedules are
generally considered to fall between 16 and 32 hours per week. Interns
are covered by the same rules for hours of duty contained in part 610
of the CFR.
Another agency suggested we modify the final rule to include an
intermittent work schedule. We did not modify the final rule because we
do not believe an intermittent work schedule is appropriate for an
Intern. Employees on an intermittent work schedule do not have a
regularly-scheduled tour of duty; they have no set hours of duty or
days of work every week. This is not conducive for students with a set
academic schedule or for Intern appointments intended to train an
employee for permanent employment.
Breaks in Program (Sec. 362.203(h))
Most commenting agencies felt the rule about breaks in program,
under the SEEP, should be maintained. One agency asked OPM to modify
the final rule to allow only one break in Program per appointment.
Rules about breaks in Program are solely at an agency's discretion.
Therefore, OPM will maintain the current SEEP provisions regarding
breaks in program.
3. Conversion to the Competitive Service (Sec. 362.204)
One school suggested OPM remove the 120-day requirement for
conversion so Interns working during summer months would be eligible
for conversion upon completion of his or her academic requirements. OPM
is not adopting this suggestion, as it appears to be based on a
misunderstanding of how the 120-day period works. The 120-day
administrative period begins when the Intern completes his or her
academic course of study. In other words, the agency has 120 days after
the Intern completes all academic requirements of his or her course of
study to convert the Intern to the competitive service.
Several agency commenters asked whether the requirement to complete
an academic course of study could include a variety of certificate
programs, e.g., several 2-week programs completed over a period of 2
years. Short-term training programs that award certificates for
completion are not considered an academic course of study. Because of
the many comments received regarding certificate programs, OPM modified
the regulations to include a definition of ``certificate program'' in
subpart A.
One agency asked whether third-party interns (i.e., non-Federal
interns) can convert directly into the competitive service. The
Pathways Programs do not allow a non-Federal intern to be directly
appointed to the competitive service. Up to 320 hours of service as a
third-party intern, however, counts toward conversion, if the student
subsequently is appointed to the Internship Program.
Several agencies asked OPM to clarify the Internship rules
regarding creditable work experience and waiver of work experience for
conversion. We agree with the agencies that further clarification of
the requirements in the proposed rule is in order. Therefore, we
[[Page 28209]]
modified the final rule by restructuring this section as follows: (a)
Contains the conversion authority; (b) lists the conversion
requirements an Intern must meet for eligibility, such as 640 hours of
work experience; and (c) addresses creditable work experience.
Paragraph (d) contains the waiver provision. Agencies may waive up to
one-half, which is 320 hours, of the work experience requirement for
outstanding performers who also have a 3.5 or better grade point
average. Paragraph (e) makes it clear that agencies may not credit or
waive, or any combination thereof, more than 320 hours of the 640-hour
work experience requirement.
Another agency suggested that agencies should be required to
document the credit of work experience or waivers. We are not adopting
this suggestion because agencies have the flexibility to establish such
a requirement should they choose to do so. Additionally, the Internship
Program mirrors the existing SEEP, which does not have such a
requirement.
Another agency suggested that any experience creditable toward the
640-hour work experience should be directly related to an Intern's
career path and academic study. We agree in part. We modified the final
rule to require that creditable work experience must be comparable to
the work experience of the Internship appointment. For consistency, we
did not adopt the suggestion to require the creditable service to
directly relate to an Intern's academic study because it is not a
requirement of the Internship Program itself.
Several agencies asked OPM to modify the final rule to require that
Interns be rated Fully Successful or above to be eligible for
conversion. We have not historically expressly stated a minimum rating
for student conversion and are concerned that by introducing it now,
there will be confusion about what it means. It is our expectation,
though, that agencies would only convert students who are performing
acceptably, as reflected in any formal ratings of record they may have
achieved.
One agency suggested OPM lower the Grade Point Average (GPA)
requirement under the waiver provision for Interns, stating a 3.5 GPA
requirement to be very restrictive. The agency also suggested that many
schools no longer use a ranking system. OPM did not adopt this
suggestion because we believe there must be sufficient support to waive
one-half of the work requirement. The waiver provision allows agencies
to waive up to 320 hours of the 640-hour work requirement based
exclusively on a high potential that must be supported by exceptional
academic and job performance. Also, this standard mirrors the current
SCEP standard.
Another agency asked OPM to change the waiver requirement for
exceptional job performance by modifying the final rule to state that
exceptional job performance can be demonstrated by a performance rating
of Fully Successful or higher. OPM is not accepting this suggestion
because we do not believe a Fully Successful rating demonstrates
exceptional job performance. The waiver provision allows agencies to
waive up to 320 hours of the 640-hour work requirement based
exclusively on a high potential that must be supported by exceptional
academic and job performance.
OPM received several comments simply supporting or opposing the
credit or waiver of 320 hours of work experience. These comments
offered nothing further than the simple statement of support or
opposition, and no response is necessary.
One agency asked if performance plans are required for Interns.
Yes, Pathways Participants are Federal employees subject to performance
management provisions as specified in part 430. OPM modified the final
rule in Sec. 362.105(h) for clarity.
4. Reduction in Force and Terminations (Sec. 362.205)
One agency commented that tenure group 0 does not appear in Sec.
351.502. The agency suggested OPM revise the regulatory text in either
this section or Sec. 351.502. We are not adopting this suggestion.
Tenure group 0 is not included in Sec. 351.502 because it is not
covered by RIF regulations; thus, employees who have a tenure group
status of 0 have no RIF rights.
Several agencies asked OPM to clarify tenure codes for Interns. We
agree with this suggestion and modified the final rule to clearly state
that Interns hired for more than 1 year are placed in tenure group II;
temporary Interns (hired not to exceed 1 year) are placed in tenure
group 0; temporary Interns extended for an additional year are placed
in tenure group III.
Several agencies asked OPM to modify the final rule to clarify
appeal rights for Interns. We did not adopt this suggestion because
Pathways Interns are Federal employees subject to the same appeal
rights under chapter 75 of title 5, United States Code as any other
employee. Since the provisions for appeal rights are covered under
another rule, we will not restate them under this part.
One agency suggested that OPM clarify information pertaining to
termination based on conduct and performance. We are not making this
change because Pathways Participants are Federal employees and are
subject to regulations on terminations for conduct and performance in
parts 432 and 752.
C. Recent Graduates Program (Part 362, Subpart C)
The rules governing the Recent Graduates Program are in subpart C.
A union commented that agencies should be required to create
training solely for Recent Graduates Program Participants that is
different from the standard training offered to all employees at the
agency. We agree, as this is the intent of the regulation. Section
362.301 of the proposed regulation addresses this issue.
The union also commented that the Recent Graduates Program should
not permit an agency to hire whole groups of entry-level employees and
then convert them to term appointments. It would be highly unusual for
agencies to take the course of action described by the union. The
intent behind allowing agencies to convert Pathways Participants to
term appointments is to cover those instances where budgets and other
workforce requirements preclude an agency from converting an individual
to a permanent position. Because a term appointment can be made for up
to 4 years, the agency may be able to recover and subsequently offer
that term employee a permanent position. Again, agency practices in
implementing the Pathways Programs will have to comply with the MOU and
will be subject to OPM oversight, and we will address any concerns
along the lines of what the union posits in its comment through the MOU
process.
Another union commented that eligibility for the Recent Graduates
Program should be limited to those completing the requirements for
their degree or certificate within 1 year, rather than 2. The union
contends that the narrower window keeps the Program's focus on those
who have graduated most recently. Another commenter specifically
applauded the 2-year window. The 2-year eligibility window is required
by the Executive order, and we have no discretion to adopt the
commenter's suggestion. Moreover, we disagree with the union
commenter's premise that those having completed their degree or
certificate requirements within the preceding 2 years are not recent
graduates. It takes time for many graduates to obtain their first job
following graduation (months and even years in some cases), so many
will not have an opportunity to gain much experience during their first
year
[[Page 28210]]
that would allow them to compete in the normal competitive process in
year two.
One agency requested that any individual who graduated between the
date the Federal Career Intern Program was abolished (February 28,
2011) and the date these regulations take effect should have an
extended window of eligibility. We reject this suggestion because the
Recent Graduates Program was developed independent of the FCIP based on
OPM's analysis of the Federal Government's ability to recruit, hire,
and retain students and recent graduates. It would therefore not be
appropriate to tie eligibility for the Recent Graduates Program in any
way to the FCIP.
We are, however, sympathetic to those who graduated during the
period starting when President Obama issued Executive Order 13562
(December 27, 2010) through the date these regulations take effect. The
Executive order directed that this Program be created, and these
graduates should not be disadvantaged as a result of the length of time
it takes to issue implementing regulations. Accordingly, we think it is
fair and equitable to allow anyone who would have become eligible for
the Recent Graduates Program after the date Executive Order 13562 was
issued and before the final regulations take effect to have 2 full
years of eligibility from the date the final regulations take effect.
We expect this change will have the largest impact on the May 2011
graduates, who otherwise would have only had 1 year of eligibility
under the Program. OPM will provide additional instructions in the
transition guidance.
One union also emphasized its view that it is important that Recent
Graduate opportunities apply only to entry-level positions. We agree
with the commenter and have amended Sec. 362.301 to specifically
reference entry-level positions.
1. Program Administration (Sec. 362.301)
Mentor (Sec. 362.301(a))
One agency asked OPM to define what we meant by the requirement to
assign a mentor from an ``appropriate level'' outside the Recent
Graduate's chain of command. We have reconsidered this issue and now
conclude that the level of the mentor assigned should be left solely to
the agency's discretion. We intend to allow agencies the discretion to
determine mentor grade levels, as agency decisions can be made based on
any one of a number of factors such as, on a case-by-case basis,
according to job series, or according to the grade level of the Recent
Graduate.
Training (Sec. 362.301(c))
One agency asked OPM to explain the meaning of ``formal'' training
in Sec. 362.301(c). For the purposes of the Recent Graduates Program,
``formal'' training is any structured, career-related training.
2. Eligibility (Sec. 362.302)
Several agencies requested that OPM clarify the eligibility
requirements for participation in the Recent Graduates Program. Recent
Graduates have 2 years from the date they complete their educational
requirements to apply to the Recent Graduates Program. Applicants who
apply to Recent Graduates job announcements within the 2-year time
limit may be considered and appointed even if the appointment occurs
after the 2-year time limit. As mentioned, we are providing 2 full
years from the final date of these regulations for anyone graduating
since the Executive order was issued on December 27, 2010, who
otherwise meets all of the eligibility requirements of the Recent
Graduates Program.
Several agencies asked OPM to provide situational examples on the
extension of eligibility for veterans in Sec. 362.302(b)(2). OPM will
issue transition guidance that will contain situational examples to
clarify how to extend the 2-year eligibility period for veterans
precluded from applying to the Recent Graduates Program due to military
service.
One agency suggested OPM modify the final rule to include Peace
Corps and VISTA volunteers in the extension of eligibility because of a
military service obligation provided in Sec. 362.302(b)(2). The
extension of eligibility was narrowly tailored to address the unique
circumstances of service members. We are not persuaded that the
exception should be extended beyond that population, nor is there
authority to do so under the Executive order.
One commenter suggested OPM modify the military extension criteria
to provide a 2-year eligibility period for any veteran completing
degree requirements while on active duty. We are not adopting this
suggestion because the requirements of the Executive order are to
provide an eligibility extension to individuals who enter active
military duty after completion of their educational requirements.
One agency asked OPM to allow agencies to extend the eligibility
period for veterans beyond 6 years. The 6-year window was established
in the Executive order, and we are without authority to extend it
further.
One agency suggested OPM change the eligibility criterion in Sec.
362.302 from ``completion of all requirements of an academic course of
study'' to ``must have obtained a qualifying degree.'' The agency
believes that, as written, the requirements will be administratively
burdensome to agencies, applicants and educational institutions. It
also states that the requirement will result in improper appointments
or inadequate consideration of candidates. Additionally, it states that
the suggested change aligns more closely with the requirements of the
Executive order. OPM is not adopting this suggestion because the
requirement to ``complete all requirements of an academic course of
study'' has been effective under the current SEEP. Additionally,
requiring the graduate to be in receipt of the diploma or certificate
can, in many cases, disadvantage the recent graduate. We understand it
is not uncommon for individuals to complete their academic course of
study and then not receive their certificate or degree for months,
depending on the procedures of the particular school.
One agency suggested that OPM modify the final rule in Sec.
362.302 to be consistent with language used in other sections of the
proposed rule regarding the completion of educational requirements. We
agree that eligibility criteria should be consistently stated. We have
modified the final rule in Sec. 362.302 to state the eligibility as
``2 years from the date all requirements of an academic course of study
leading to a qualifying associate's, bachelor's, master's,
professional, doctorate, vocational or technical degree or certificate
from a qualifying educational institution are met.'' This generally
means the individual is considered a Recent Graduate upon completion of
all required coursework and final exams, not the date the graduate
receives the degree or certificate.
3. Filling Positions (Sec. 362.303)
Announcements (Sec. 362.303(a))
One agency suggested that OPM modify the final rule to require
agencies to fill Recent Graduate positions within a certain time period
of the announcement, for example 90 or 120 days. We are not adopting
the agency's suggestion because we do not believe it is appropriate to
impose a hard deadline on agency hiring actions. For example, we would
not want to prevent agencies from participating in on campus fall
recruiting events for positions to be
[[Page 28211]]
filled the following spring, after the candidates graduate.
Appointments (Sec. 362.303(b))
One agency asked OPM to define ``initial appointment'' as
referenced in Sec. 362.303(b). For the purposes of Pathways, ``initial
appointment'' means an individual's first Pathways appointment in any
particular agency.
The same agency asked if Recent Graduates appointments can be made
at the full performance-level of a position. Appointments under the
Recent Graduates Program may not be made to a full-performance level
position. Recent Graduate appointments must have career advancement
opportunities, i.e. they must be career ladder positions.
Section 362.303(b)(3)(i) through (iv) allows Recent Graduates
filling certain science, technology, engineering, and mathematics
(STEM) positions to be appointed up to the GS-11 grade level. An agency
asked OPM to clarify whether additional occupations, other than STEM,
would be included to allow initial appointment above the GS-9 grade
level. They would not.
The same agency asked OPM to include a list of science, technology,
engineering, or mathematics (STEM) occupations, as referenced in Sec.
362.303(b)(3)(ii), in the final rule. OPM refers the agency to the
listing of STEM occupational families appearing in the Handbook of
Occupational Groups and Families, available on the OPM Web site.
Several schools suggested OPM remove the grade-level limitations of
the Recent Graduates Program to allow work-related experience and
additional skills to be used to qualify for appointment up to a GS-12.
OPM is not adopting this suggestion because the point of this Program
is to allow individuals to qualify for jobs based solely on their
education.
Extensions (Sec. 362.303(c))
Several agencies suggested OPM include a provision in the final
rules allowing OPM to approve appointment extensions, not to exceed 1
year, for Recent Graduate appointments. OPM is not adopting this
suggestion because the Executive order does not provide OPM the
authority to do so. Recent Graduate appointments may only be extended
up to a period of 120 days under the employing agencies' procedures.
Agencies may, of course, continue to provide training, mentoring, and
career development opportunities at their discretion.
Qualifications (Sec. 362.303(d))
Section 362.303(d) requires agencies to fill Recent Graduates
positions using the OPM Qualification Standard for the position being
filled. Several agencies asked OPM to modify the final rule to allow
the use of agency-developed qualification standards. We are not
adopting this suggestion because we do not have the authority to do so
under the Executive order, which requires use of OPM Qualification
Standards.
Promotions (Sec. 362.303(e))
One agency suggested OPM add a provision to allow agencies to make
accelerated promotions for Recent Graduates. We are not adopting this
suggestion. The purpose of the Program is to provide a developmental
experience designed to lead to a Federal career. Accelerated promotions
are not consistent with the purpose of the Recent Graduates Program.
Trial Period (Sec. 362.303(f))
One agency asked OPM to clarify trial period for Recent Graduates.
Specifically, the agency requested clarification of the reference to
Sec. 315.802 which applies to probationary periods in the competitive
service. Because recent graduates must work for at least one year prior
to conversion, they will have completed their probationary period upon
conversion. No further trial period following conversion is available.
4. Movement Between Agencies (Sec. 362.304)
Several agencies asked OPM to clarify the provisions in Sec.
362.304. Specifically, they asked if the new agency can require the
Recent Graduates to begin a new employment period for conversion
eligibility. An agency that hires a current Recent Graduate into its
Program cannot require the Recent Graduate to start a new Recent
Graduate appointment. The agency must convert the Recent Graduate
without a break in service, and the employee will be eligible for
conversion upon completion of the gaining agency's Program plus any
agency-approved extension not to exceed 120 days. This applies
regardless of the position series the Recent Graduate is appointed to
in either agency.
5. Reduction in Force and Terminations (Sec. 362.305)
One agency suggested OPM clarify information pertaining to
termination of employment based on conduct and performance. Another
suggested we add language pertaining to appeal rights for Recent
Graduates. OPM is not adopting these suggestions because regulatory
guidance on terminations for conduct and performance and appeal rights
can be found in parts 432 and 752, respectively.
6. Conversion to the Competitive Service (Sec. 362.306)
Several agencies asked OPM to modify the final rule to allow the
use of agency-developed qualification standards for conversion to
positions in the competitive service. We are not adopting this
suggestion because we do not have the authority to do so under the
Executive order, which requires use of OPM Qualification Standards.
Recent Graduates must meet the OPM Qualification Standards for the
position to which he or she will be converted. On the rare occasions
where we have provided for agency-specific qualification standard, for
a competitive service position, we are considering that to be an OPM
Qualification Standard that agencies may use.
One agency asked OPM to specify time-in-grade (TIG) requirements
for promotion at the time of conversion. We are not adopting this
suggestion. Generally, excepted service employees are not subject to
the TIG requirements of the competitive service. However, Recent
Graduates are subject to the OPM Qualification Standards. This means
that in order to promote a Recent Graduate, he or she would have to
meet the specialized experience requirement of the applicable
qualification standard, which is generally 1 year. The same
requirements apply when converting the Recent Graduate to a competitive
service position. For example, a GS-9 Recent Graduate would need 1 year
of specialized experience at the GS-9 level at the time of conversion
to be converted to a GS-11 position in the competitive service.
Several schools recommended OPM include a provision in the final
rule to require conversion to the competitive service upon completion
of the Recent Graduates Program. OPM is not adopting this suggestion
because we believe conversion decisions should be based on the
individual and the needs of the agency. We encourage agencies, however,
to conduct sound workforce planning so that adequate conversion
opportunities are available for Recent Graduates.
Recent Graduates must be rated under an agency's approved
performance appraisal system as at least Fully Successful (or
equivalent) to be eligible for conversion to the competitive service.
One agency suggested OPM add requirements to clarify how performance
will be evaluated when a
[[Page 28212]]
Recent Graduate moves to another agency. OPM is not adopting this
suggestion, because no special rule applies to Recent Graduates.
Rather, Recent Graduates are Federal employees subject to the
performance management requirements specified in part 430 of 5 CFR.
D. Presidential Management Fellows Program (Part 362, Subpart D)
The proposed regulations set forth the rules governing the PMF
Program in subpart D. OPM received several comments simply supporting
or opposing the elimination of the school nomination process. A union
urged OPM to retain the school nomination process. The union argues the
nomination process is the key to maintaining the PMF as a rigorous,
prestigious program. It suggested that OPM regulate standards for
schools to apply when making nominations. It also cited anecdotal
evidence that OPM's assessment process is more burdensome than the
school nomination process. A good government group and an academic
group commented in favor of the elimination of the nomination process.
We agree with these commenters, rather than the union commenter. We do
not believe that the school nomination process is critical any longer.
It may be subject to inconsistent application and, for those schools
not as familiar with how the PMF Program operates, has served as a
barrier to application for qualified students, according to reports we
have received from students at those institutions. Moreover, we have
revamped our PMF assessment process to include, among other things, an
interview process that has been professionally developed and validated
by our industrial psychologists. Our new assessment process ensures
that the PMF Program will remain a rigorous and prestigious program
that uses a valid, professionally-developed selection process. Finally,
as the academic commenter notes, the new eligibility rules for PMF
allow an individual to participate up to 2 years after having obtained
a degree. There would be substantial practical obstacles for schools to
manage a nomination process that includes alumni, and for the alumni--
who may now be very far away from campus--to participate in any such
process.
1. Program Administration (Sec. 362.402)
One agency objected to subparagraph (d), which requires agencies to
allow Fellows assigned to field locations to do a developmental
rotation to agency headquarters and to allow Fellows to attend Federal
Executive Board-sanctioned activities in their region. The agency asked
OPM to modify the final rule by changing the word ``must'' to
``should'' or ``OPM highly recommends.'' The agency believes the
current language places expectations on agencies that may be difficult
to meet or inappropriate. We agree with the agency and modified the
final rule to comport with this suggestion.
2. Announcement, Eligibility and Selection (Sec. 362.403)
Several agencies asked OPM to clarify the new eligibility criteria
for PMFs. To clarify, individuals are eligible to apply to the PMF
Program up to 2 years from the date of completion of the educational
requirements for a professional or graduate degree. A PMF finalist may
be appointed without regard to the time limit for application. For
example, an individual could apply for the PMF Program a year and a
half after completing his or her advanced degree. If the individual is
selected as a finalist but does not receive an employment offer until
two and a half years after completion of the degree, the individual may
be appointed as a PMF. OPM is not establishing a limit on the number of
times a graduate may apply to the PMF Program. However, a PMF finalist
who chooses to reapply to a future announcement will be removed from
the current finalist list and must successfully compete for placement
on the new finalist list.
3. Appointment and Extension (Sec. 362.404)
Several agencies suggested OPM include a provision in the final
rules allowing OPM to approve extensions of PMF appointments, not to
exceed 1 year. OPM is not adopting this suggestion because the
Executive order does not provide OPM the authority to do so. PMF
appointments may only be extended up to a period of 120 days under the
employing agencies' procedures. Agencies should only extend
appointments under rare and unusual circumstances. The extension period
should not be used as a standard practice to accommodate the processing
of personnel actions.
4. Development, Evaluation, Promotion, and Certification (Sec.
362.405)
Most commenting agencies objected to the requirement that PMF
mentors be in the Senior Executive Service (SES). OPM is persuaded by
these comments. Talented mentors exist at the non-SES levels, and SES
mentors may not be available in certain agency field locations. We
adjusted the regulation to require a mentor to be a ``managerial
employee outside the PMF's chain of command.''
A majority of agencies asked OPM to modify the provisions of
paragraph (b)(6) that require agencies to provide PMFs to assist in the
assessment process of new PMF applicants at the agency's expense. OPM
agrees and has removed the provision requiring agencies to cover the
expenses associated with providing PMF assessors.
5. Withdrawal and Readmission (Sec. 362.407)
One agency asked OPM if the last sentence of paragraph (a)(1)
regarding reimbursement of the placement fee, was misplaced and should
in fact be part of Sec. 362.406, Movement between agencies. The agency
is correct. We have modified the final rule by placing the sentence in
Sec. 362.406(d). The agency also asked OPM to clarify who would
reimburse the original appointing agency, OPM or the gaining agency.
The original appointing agency may request reimbursement from the
gaining agency, not OPM.
Executive Order 13563 and Executive Order 12866
The Office of Management and Budget has reviewed this rule in
accordance with E.O. 13563 and E.O. 12866.
Paperwork Reduction Act
This document does not contain proposed information collection
requirements subject to the Paperwork Reduction Act of 1995, Public Law
104-13.
Regulatory Flexibility Act
I certify that these regulations will not have a significant
economic impact on a substantial number of small entities because they
will apply only to Federal agencies and employees.
List of Subjects in 5 CFR Parts 213, 302, 315, 330, 334, 362, 531,
536, 537, 550, 575, and 890
Administrative practices and procedures, Colleges and universities,
Employment, Government employees, Military personnel, Students,
Veterans.
U.S. Office of Personnel Management.
John Berry,
Director.
Accordingly, the Office of Personnel Management is amending 5 CFR
chapter I as follows:
PART 213--EXCEPTED SERVICE
0
1. The authority citation for part 213 is revised to read as follows:
[[Page 28213]]
Authority: 5 U.S.C. 3161, 3301 and 3302; E.O. 10577, 3 CFR
1954-1958 Comp., p. 218; E.O. 13562. Sec. 213.101 also issued under
5 U.S.C. 2103. Sec. 213.3102 also issued under 5 U.S.C. 3301, 3302,
3307, 8337(h), and 8456; 38 U.S.C. 4301 et seq.; and Pub. L. 105-
339, 112 Stat. 3182-83.
Subpart A--General Provisions
0
2. Revise Sec. 213.102 to read as follows:
Sec. 213.102 Identification of positions in Schedule A, B, C, or D
(a) As provided in 5 U.S.C. 3302, the President may prescribe rules
governing the competitive service. The rules shall provide, as nearly
as conditions of good administration warrant, for--
(1) Necessary exceptions of positions from the competitive service;
and
(2) Necessary exceptions from the provisions of sections 2951,
3304(a), 3321, 7202, and 7203 of title 5, U.S. Code.
(b) The President delegated authority to the Office of Personnel
Management (OPM) in Civil Service Rule VI to except positions from the
competitive service when OPM determines that:
(1) Appointments thereto through competitive examination are not
practicable; or
(2) Recruitment from among students attending qualifying
educational institutions or individuals who have recently completed
qualifying educational programs can better be achieved by devising
additional means for recruiting and assessing candidates that diverge
from the processes generally applicable to the competitive service.
(3)(i) Upon determining that any position or group of positions, as
defined in Sec. 302.101(c), should be excepted indefinitely or
temporarily from the competitive service, the Office of Personnel
Management will authorize placement of the position or group of
positions into Schedule A, B, C, or D, as applicable. Unless otherwise
specified in a particular appointing authority, an agency may make
Schedule A, B, C, or D appointments on either a permanent or
nonpermanent basis, with any appropriate work schedule (i.e., full-
time, part-time, seasonal, on-call, or intermittent).
(ii) When OPM establishes eligibility requirements (e.g.,
residence, family income) for appointment under particular Schedule A,
B, or D exceptions, an individual's eligibility for appointment must be
determined before appointment and without regard to any conditions that
will result from the appointment.
(c) For purposes of making any such determinations, positions
includes:
(1) Those that are intended to be removed indefinitely from the
competitive service because the nature of the position itself precludes
it from being in the competitive service (e.g., because it is
impracticable to examine for the knowledge, skills, and abilities
required for the job); and
(2) Those that are intended to be removed temporarily from the
competitive service to allow for targeted recruiting and hiring from
among a particular class of persons, as defined by the Office of
Personnel Management, with the opportunity for the persons selected for
those positions to convert to the competitive service at a later date.
0
3. In Sec. 213.103, revise the section heading and paragraph (a) to
read as follows:
Sec. 213.103 Publication of excepted appointing authorities in
Schedules A, B, C, and D.
(a) Schedule A, B, C, and D appointing authorities available for
use by all agencies will be published as regulations in the Federal
Register and the Code of Federal Regulations.
* * * * *
0
4. In Sec. 213.104, revise the section heading, paragraph (a)
introductory text, and paragraphs (a)(1), (b)(1), (b)(2), and
(b)(3)(ii) to read as follows:
Sec. 213.104 Special provisions for temporary, time-limited,
intermittent, or seasonal appointments in Schedule A, B, C, or D.
(a) When OPM specifies that appointments under a particular
Schedule A, B, C, or D authority must be temporary, intermittent, or
seasonal, or when agencies elect to make temporary, intermittent, or
seasonal appointments in Schedule A, B, C, or D, those terms have the
following meaning:
(1) Temporary appointments, unless otherwise specified in a
particular Schedule A, B, C, or D exception, are made for a specified
period not to exceed 1 year and are subject to the time limits in
paragraph (b) of this section. Time-limited appointments made for more
than 1 year are not considered to be temporary appointments, and are
not subject to these time limits.
* * * * *
(b) * * *
(1) Service limits. Agencies may make temporary appointments for a
period not to exceed 1 year, unless the applicable Schedule A, B, C, or
D authority specifies a shorter period. Except as provided in paragraph
(b)(3) of this section, agencies may extend temporary appointments for
no more than 1 additional year (24 months of total service).
Appointment to a successor position (i.e., a position that replaces and
absorbs the original position) is considered to be an extension of the
original appointment. Appointment to a position involving the same
basic duties, in the same major subdivision of the agency, and in the
same local commuting area is also considered to be an extension of the
original appointment.
(2) Restrictions on refilling positions under temporary
appointments. Except as provided in paragraph (b)(3) of this section,
an agency may not fill any position (or its successor) by a temporary
appointment in Schedule A, B, C, or D if that position had previously
been filled by temporary appointment(s) in either the competitive or
excepted service for an aggregate of 2 years, or 24 months, within the
preceding 3-year period. This limitation does not apply to programs
established to provide for systematic exchange between a Federal agency
and non-Federal organizations.
(3) * * *
(ii) Positions are filled under an authority established for the
purpose of enabling the appointees to continue or enhance their
education, or to meet academic or professional qualification
requirements. These include the authorities set out in paragraphs (r)
and (s) of Sec. 213.3102 and paragraphs (a), (b), and (c) of Sec.
213.3402, and authorities granted to individual agencies for use in
connection with internship, fellowship, residency, or student programs.
* * * * *
Subpart C--Excepted Schedules
0
5. In Sec. 213.3102, remove and reserve paragraphs (ii) and (jj).
Sec. 213.3102 Entire executive civil service.
* * * * *
(ii) [Reserved]
(jj) [Reserved]
* * * * *
0
6. In Sec. 213.3202, remove and reserve paragraphs (a), (b), and (o).
Sec. 213.3202 Entire executive civil service.
(a) [Reserved]
(b) [Reserved]
* * * * *
(o) [Reserved]
* * * * *
0
7. After Sec. 213.3302, add a new undesignated center heading and
Sec. 213.3401 and Sec. 213.3402 to read as follows:
[[Page 28214]]
Schedule D
Sec. 213.3401 Positions other than those of a confidential or policy
determining character for which the competitive service requirements
make impracticable the adequate recruitment of sufficient numbers of
students attending qualifying educational institutions or individuals
who have recently completed qualifying educational programs.
As authorized by OPM, agencies may make appointments under this
section to positions other than those of a confidential or policy-
determining character for which the competitive service requirements
make impracticable the adequate recruitment and selection of sufficient
numbers of students attending qualifying educational institutions or
individuals who have recently completed qualifying educational
programs. These positions, which may be filled in the excepted service
to enable more effective recruitment from all segments of society by
using means of recruiting and assessing candidates that diverge from
the rules generally applicable to the competitive service, constitute
Schedule D Pathways Programs. Appointments under this authority are
subject to the basic qualification standards established by the Office
of Personnel Management for the occupation and grade level unless
otherwise stated.
Sec. 213.3402 Entire executive civil service; Pathways Programs.
(a) Internship Program; Positions in the Internship Program.
Agencies may make initial appointments of Interns under this authority
at any grade level, depending on the candidates' qualifications.
Appointments must be made in accordance with the provisions of subpart
B of part 362 of this chapter.
(b) Recent Graduates Program; Positions in the Recent Graduates
Program. (1) Agencies may make initial appointments of Recent Graduates
at any grade level, not to exceed GS-09 (or equivalent level under
another pay and classification system, including the Federal Wage
System (FWS)), depending on the candidates' qualifications, and the
position's requirements except that:
(i) Initial appointments to positions for science, technology,
engineering, or mathematics (STEM) occupations may be made at the GS-11
level, if the candidate possesses a Ph.D. or equivalent degree directly
related to the STEM position the agency is seeking to fill.
(ii) Initial appointments to scientific and professional research
positions at the GS-11 level for which the classification and
qualification criteria for research positions apply, if the candidate
possesses a master's degree or equivalent graduate degree directly
related to the position the agency is seeking to fill.
(iii) Initial appointments to scientific and professional research
positions at the GS-12 level for which the classification and
qualification criteria for research positions apply, if the candidate
possesses a Ph.D. or equivalent degree directly related to the position
the agency is seeking to fill.
(2) Appointments must be made in accordance with the provisions of
subpart C of part 362 of this chapter.
(c) Presidential Management Fellows Program. Positions in the
Presidential Management Fellows Program. Appointments under this
authority may not exceed 2 years except as provided in subpart D of
part 362 of this chapter. Agencies may make initial appointments of
Fellows at the GS-09, GS-11, or GS-12 level (or equivalent under
another pay and classification system such as the FWS), depending on
the candidates' qualifications and the positions' requirements.
Appointments must be made in accordance with the provisions of subpart
D of part 362 of this chapter.
PART 302--EMPLOYMENT IN THE EXCEPTED SERVICE
0
8. The authority citation for part 302 continues to read as follows:
Authority: 5 U.S.C. 1302, 3301, 3302, 8151, E.O. 10577 (3 CFR
1954-1958 Comp., p. 218); Sec. 302.105 also issued under 5 U.S.C.
1104, Pub. L. 95-454, sec. 3(5); Sec. 302.501 also issued under 5
U.S.C. 7701 et seq.
0
9. In Sec. 302.101, remove paragraph (c)(8) and redesignate paragraphs
(c)(9) through (11) as paragraphs (c)(8) through (10), respectively.
PART 315--CAREER AND CAREER-CONDITIONAL EMPLOYMENT
0
10. 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. 13562.
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. 2506. 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 issued under E.O. 13473. Sec. 315.710 also issued
under E.O. 12596, 3 CFR, 1987 Comp. p. 229. Subpart I also issued
under 5 U.S.C. 3321, E.O. 12107, 3 CFR, 1978 Comp. p. 264.
Subpart B--The Career-Conditional Employment System
0
11. In Sec. 315.201, revise paragraphs (b)(1)(ix), (b)(1)(xiii), and
(b)(1)(xix) and add paragraphs (b)(1)(xx), (b)(1)(xxi), and
(b)(1)(xxii) to read as follows:
Sec. 315.201 Service requirement for career tenure.
* * * * *
(b) * * *
(1) * * *
(ix) The date of nontemporary excepted appointment under Sec.
213.3202(b) of this chapter (the former Student Career Experience
Program) as in effect immediately before the effective date of the
regulations removing that paragraph, provided the student's appointment
is converted to career or career-conditional appointment under
Executive Order 12015, with or without an intervening term appointment,
and without a break in service of one day.
* * * * *
(xiii) The date of appointment as a Participant in the Presidential
Management Fellows Program under the provisions of Executive Order
13318, provided the employee's appointment is converted without a break
in service to career or career-conditional appointment under Sec.
315.708 as in effect immediately before the effective date of the
regulations that removed and reserved that section;
* * * * *
(xix) Appointment as a career intern under Schedule B, Sec.
213.3202(o) of this chapter, provided the employee's appointment is
converted to career or career-conditional appointment under Sec.
315.712 as in effect immediately before the effective date of the
regulations that removed and reserved that section;
(xx) The date of appointment as a Pathways Participant in the
Internship Program under Schedule D, Sec. 213.3402(a) of this chapter,
provided the employee's appointment is converted to career or career-
conditional appointment under Sec. 315.713(a), with or without an
intervening term appointment, and without a break in service of one
day;
(xxi) The date of appointment as a Pathways Participant in the
Recent Graduates Program under Schedule D, Sec. 213.3402(b) of this
chapter, provided the employee's appointment is converted to career or
career-conditional appointment under Sec. 315.713(b), with or
[[Page 28215]]
without an intervening term appointment, and without a break in service
of one day; and
(xxii) The date of appointment as a Pathways Participant in the
Presidential Management Fellows Program under Schedule D, Sec.
213.3402(c) of this chapter, provided the employee's appointment is
converted to career or career-conditional appointment under Sec.
315.713(c), with or without an intervening term appointment, and
without a break in service of one day.
* * * * *
Subpart G--Conversion to Career or Career-Conditional Employment
From Other Types of Employment
Sec. 315.708 [Removed and Reserved]
0
12a. Remove and reserve Sec. 315.708.
Sec. 315.712 [Removed and Reserved]
0
12b. Remove and reserve Sec. 315.712.
0
12c. Add a new Sec. 315.713 to subpart G to read as follows:
Sec. 315.713 Conversion based on service in a Pathways Program under
part 362 of this chapter.
(a) Agency authority. An agency may convert to a career or career-
conditional employment in the competitive service, without further
competition, the following Pathways Participants:
(1) An Intern who has satisfactorily completed the Internship
Program and meets all eligibility requirements for conversion under
subpart B of part 362 of this chapter;
(2) A Recent Graduate who has satisfactorily completed the Recent
Graduates Program and meets all eligibility requirements for conversion
under subpart C of part 362 of this chapter; and
(3) A Presidential Management Fellow who has satisfactorily
completed the Fellows Program and meets all eligibility requirements
for conversion under subpart D of part 362 of this chapter.
(b) Tenure on conversion. An employee whose appointment is
converted to career or career-conditional employment under this section
becomes:
(1) A career-conditional employee except as provided in paragraph
(b)(2) of this section;
(2) A career employee when he or she has completed the service
requirement for career tenure or is excepted from it by Sec.
315.201(c).
(c) Acquisition of competitive status. A Pathways Participant
converted to career or career-conditional employment in the competitive
service under this section acquires competitive status upon completion
of probation.
PART 330--RECRUITMENT, SELECTION, AND PLACEMENT (GENERAL)
0
13. The authority citation for part 330 continues 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; 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;
Subpart G also issued under 5 U.S.C. 8337(h) and 8456(b).
0
14. In Sec. 330.211, revise paragraph (f)(3) to read as follows:
Sec. 330.211 Exceptions to RPL placement priority.
* * * * *
(f) * * *
(3) An excepted service appointment under part 213 of this chapter;
* * * * *
0
15. In Sec. 330.609, revise paragraph (e)(3) to read as follows:
Sec. 330.609 Exceptions to CTAP selection priority.
* * * * *
(e) * * *
(3) Make an excepted service appointment under part 213 of this
chapter;
* * * * *
0
16. In Sec. 330.707, revise paragraph (h)(3) to read as follows:
Sec. 330.707 Exceptions to ICTAP selection priority.
* * * * *
(h) * * *
(3) An excepted service appointment under part 213 of this chapter;
* * * * *
PART 334--TEMPORARY ASSIGNMENTS UNDER THE INTERGOVERNMENTAL
PERSONNEL ACT (IPA)
0
17. The authority citation for part 334 continues to read as follows:
Authority: 5 U.S.C. 3376; E.O. 11589, 3 CFR 557 (1971-1975).
0
18. In Sec. 334.102 revise the definition of employee to read as
follows:
Sec. 334.102 Definitions.
* * * * *
Employee, for purposes of participation in this Program, means an
individual serving in a Federal agency under a career or career-
conditional appointment, including a career appointee in the Senior
Executive Service, an individual under an appointment of equivalent
tenure in an excepted service position, or an individual employed for
at least 90 days in a career position with a State, local, or Indian
tribal government, institution of higher education, or other eligible
organization;
* * * * *
0
19. Revise part 362 to read as follows:
PART 362--PATHWAYS PROGRAMS
Subpart A--General Provisions
Sec.
362.101 Program administration.
362.102 Definitions.
362.103 Authority.
362.104 Agency requirements.
362.105 Filling positions.
362.106 Participant Agreement.
362.107 Conversion to the competitive service.
362.108 Program oversight.
362.109 Reporting requirements.
362.110 Transition.
Subpart B--Internship Program
362.201 Agency authority.
362.202 Definitions.
362.203 Filling positions.
362.204 Conversion to the competitive service.
362.205 Reduction in force and termination.
Subpart C--Recent Graduates Program
362.301 Program administration.
362.302 Eligibility.
362.303 Filling positions.
362.304 Movement between agencies.
362.305 Conversion to the competitive service.
362.306 Reduction in force and termination.
Subpart D--Presidential Management Fellows Program
362.401 Definitions.
362.402 Program administration.
362.403 Announcement, eligibility, and selection.
362.404 Appointment and extension.
362.405 Development, evaluation, promotion, and certification.
362.406 Movement between agencies.
362.407 Withdrawal and readmission.
362.408 Termination and reduction in force.
362.409 Conversion to the competitive service.
Authority: E.O. 13562, 75 FR 82585. 3 CFR, 2010 Comp., p. 291
Subpart A--General Provisions
Sec. 362.101 Program administration.
(a) The Pathways Programs authorized under Executive Order 13562
consist of the following three Programs:
(1) The Internship Program;
[[Page 28216]]
(2) The Recent Graduates Program; and
(3) The Presidential Management Fellows (PMF) Program.
(b) An agency may rename the Programs specified in paragraphs
(a)(1) through (3) of this section, provided that the agency-specific
name includes the Pathways Program name identified in paragraph (a) of
this section, e.g., Treasury Internship Program.
(c) Agencies must provide for equal employment opportunity in the
Pathways Programs without regard to race, ethnicity, color, religion,
sex (including pregnancy and gender identity), national origin, age,
disability, sexual orientation, genetic information, or any other non-
merit-based factor.
Sec. 362.102 Definitions.
For the purposes of this part:
Advanced degree means a professional or graduate degree, e.g.
master's, Ph.D., J.D.
Agency means an agency as defined in 5 U.S.C. 105, and the
Government Printing Office.
Certificate program means post-secondary education, in a qualifying
educational institution, equivalent to at least one academic year of
full-time study that is part of an accredited college-level, technical,
trade, vocational, or business school curriculum.
Director means the Director of OPM or his or her designee.
OPM means the Office of Personnel Management.
Participant Agreement means a written agreement between the agency
and each Pathways Participant.
Program Participant or Pathways Participant means any individual
appointed under a Pathways Program.
Qualifying educational institution means--
(1) A public high school whose curriculum has been approved by a
State or local governing body, a private school that provides secondary
education as determined under State law, or a homeschool that is
allowed to operate in a State; and
(2) Any of the following educational institutions or curricula that
have been accredited by an accrediting body recognized by the Secretary
of the U.S. Department of Education:
(i) A technical or vocational school;
(ii) A 2-year or 4-year college or university;
(iii) A graduate or professional school (e.g., law school, medical
school); or
(iv) A post-secondary homeschool curriculum.
Sec. 362.103 Authority.
An agency may make an appointment under this part to a position
defined in Sec. 213.3402 of this chapter, provided a Memorandum of
Understanding between the head of the agency or his or her designee and
OPM is in effect.
Sec. 362.104 Agency requirements.
(a) Memorandum of Understanding. In order to make any appointment
under a Pathways authority, a Memorandum of Understanding (Pathways
MOU) must be in effect between the head of an agency, or his or her
designee, and OPM for the administration and use of Pathways Programs,
to be re-executed no less frequently than every 2 years.
(b) The Director may revoke an agency's Pathways MOU when agency
use of these Programs is inconsistent with Executive Order 13562, this
part, or the Pathways MOU.
(c) The Pathways MOU must:
(1) Include information about any agency-specific program labels
that will be used, subject to the Federal naming conventions identified
in Sec. 362.101 (e.g., OPM Internship Program);
(2) State the delegations of authority for the agency's use of the
Pathways Programs (e.g., department-wide vs. bureaus or components);
(3) Include any implementing policy or guidance that the agency
determines would facilitate successful implementation and
administration for each Pathways Program;
(4) Prescribe criteria and procedures for agency-approved
extensions for Recent Graduates and PMFs, not to exceed 120 days.
Extension criteria should be limited to circumstances that would render
the agency's compliance with the regulations impracticable or
impossible;
(5) Describe how the agency will design, implement, and document
formal training and/or development, as well as the type and duration of
assignments, and necessary exceptions for short term temporary work,
such as summer jobs;
(6) Include a commitment from the agency to:
(i) Provide to OPM any information it requests on the agency's
Pathways Programs;
(ii) Adhere to any caps on the Pathways Programs imposed by the
Director;
(iii) Provide information to OPM about opportunities for
individuals interested in participating in the Pathways Programs, as
required by this part;
(iv) Ensure adherence to the requirements for accepting
applications, assessing applicants, rating and ranking qualified
candidates, and affording veterans' preference in accordance with the
provisions of part 302; and
(v) Provide a meaningful on-boarding process for each Pathways
Program;
(7) Identify the agency's Pathways Programs Officer (PPO), who:
(i) Must be in a position at the agency's headquarters level, or at
the headquarters level of a departmental component, in a position at or
higher than grade 12 of the General Schedule (GS) (or the equivalent
under the Federal Wage System (FWS) or another pay and classification
system);
(ii) Is responsible for administering the agency's Pathways
Programs, including coordinating the recruitment and on-boarding
process for Pathways Programs Participants, and coordinating the
agency's Pathways Programs plan with agency stakeholders and other
hiring plans (e.g., merit promotion plans, plans for hiring people with
disabilities);
(iii) Serves as a liaison with OPM by providing updates on the
agency's implementation of its Pathways Programs, clarifying technical
or programmatic issues, sharing agency best practices, and other
similar duties; and
(iv) Reports to OPM on the agency's implementation of its Pathways
Programs and individuals hired under these Programs, in conjunction
with the agency's Pathways MOU; and
(8) Identify the agency's PMF coordinator responsible for
administering the agency PMF Program and serving as a liaison with OPM.
Sec. 362.105 Filling positions.
(a) Workforce Planning. Before filling any positions under these
Programs, agencies should include measures in their workforce planning
to ensure that an adequate number of permanent positions will be
available to convert Pathways Participants who successfully complete
their Programs.
(b) Announcements. When an agency accepts applications from
individuals outside its own workforce, it must provide OPM information
concerning Pathways Programs job opportunities as provided in each
Pathways Program. For the purposes of this paragraph, ``agency'' means
an Executive agency as defined in 5 U.S.C. 105 and the Government
Printing Office. An Executive department may treat each of its bureaus
or components (first major subdivision that is separately organized and
clearly distinguished from other bureaus or components in work function
and operation) as a separate agency or as part of one agency, but
[[Page 28217]]
must do so consistent with its Delegated Examining Agreement.
(c) Appointments. (1) Agencies must fill positions under the
Pathways Programs using the excepted service appointing authority
provided by Sec. 213.3402 (a), (b), or (c) of this chapter, as
applicable.
(2) Agencies must follow the procedures of part 302 of this chapter
when filling a position under a Pathways Program.
(3) Appointments are subject to all the requirements and conditions
governing term, career, or career-conditional employment, including
investigation to establish an appointee's qualifications and
suitability.
(d) Eligibility. Except as set forth in this section, eligibility
requirements for appointment under a Pathways Program are specified in
each Pathways Program.
(e) Citizenship. (1) An agency may appoint a non-citizen provided
that:
(i) The Pathways Participant is lawfully admitted to the United
States as a permanent resident or is otherwise authorized to be
employed; and
(ii) The agency is authorized to pay aliens under the annual
Appropriations Act ban and any agency-specific enabling and
appropriation statutes.
(2) A Pathways Participant must be a United States citizen to be
eligible for noncompetitive conversion to the competitive service.
(f) Employment of relatives. In accordance with part 310 of this
chapter, a Pathways Participant may work in the same agency with a
relative when there is no direct reporting relationship and the
relative is not in a position to influence or control the Participant's
appointment, employment, promotion or advancement within the agency.
(g) Length of Appointments. Except as provided in subpart B, Recent
Graduate and PMF appointments under this authority may not exceed 2
years plus any agency-approved extension of up to 120 days.
(h) Terminations. An agency may terminate a Pathways Participant
for reasons including misconduct, poor performance, or suitability
under the provisions of this chapter.
(i) Performance and progress evaluation. Each Participant must be
placed on a performance plan, as prescribed by part 430 of this chapter
or other applicable law or regulation, establishing performance
elements and standards that are directly related to acquiring and
demonstrating the various leadership, technical, and/or general
competencies expected of the Participant, as well as the elements and
standards established for the duties assigned.
(j) Compensation. The rules for setting pay upon the initial
appointment of a Participant are governed by the pay administration
rules of the pay system or pay plan of the Participant's position under
the Pathways program. In determining the Participant's compensation,
agencies may also use any applicable pay flexibilities available under
that pay system or pay plan (e.g., recruitment, relocation, and
retention incentives under part 575 of this chapter; student loan
repayments under part 537; and, for General Schedule positions, special
rates under part 530, subpart C, and the superior qualifications and
special needs pay setting authority and the maximum payable rate rule
under part 531, subpart B).
Sec. 362.106 Participant Agreement.
Agencies must execute a written Participant Agreement with each
Pathways Participant that clearly identifies expectations, including
but not limited to:
(a) A general description of duties;
(b) Work schedules;
(c) The length of the appointment and termination date;
(d) Mentorship opportunities;
(e) Training requirements as applicable;
(f) Evaluation procedures that will be used for the Participant;
(g) Requirements for continuation and successful completion of the
Program; and
(h) Minimum eligibility requirements for noncompetitive conversion
to term or permanent competitive service employment according to the
requirements of the applicable Pathways Program.
Sec. 362.107 Conversion to the competitive service.
(a) Subject to any limits on conversion imposed by the Director,
and in accordance with the provisions of each Pathways Program, an
agency may noncompetitively convert an eligible Pathways Participant to
a term or permanent competitive service position.
(b) A Pathways Participant who is noncompetitively converted to a
competitive service term appointment may be subsequently converted
noncompetitively to a permanent competitive service position.
(c) Noncompetitive conversion. (1) An Intern may be converted to a
position within the employing agency or any other agency within the
Federal Government.
(2) A Recent Graduate or Presidential Management Fellow may be
converted within the employing agency. Agencies may not convert Recent
Graduates or Presidential Management Fellows from other agencies.
(d) The provisions of the career transition assistance programs in
subparts B, F and G of part 330 of this chapter do not apply to
conversions made under this part.
(e) Time spent serving as a Pathways Participant counts towards
career tenure when the individual is noncompetitively converted to a
permanent position in the competitive service upon completion of the
Program, with or without an intervening term appointment, and without a
break in service of one day.
(f) Though Pathways Participants are eligible for noncompetitive
conversion to the competitive service upon successful completion of
their Program and any other applicable conversion requirements, service
in a Pathways Program confers no right to further employment in either
the competitive or excepted service. An agency wishing to convert a
Pathways Participant must therefore execute the required actions to do
so.
Sec. 362.108 Program oversight.
(a) The Director may establish caps on the number of Pathways
Participants who may be appointed or converted in any Pathways Program
within a specific agency or throughout the Federal Government.
(b) The Director may establish such caps based on agency or
Governmentwide use of the Pathways Programs, input from the Executive
agencies, and consideration of the following:
(1) Agency MOU compliance;
(2) Agency approach to entry-level hiring;
(3) Agency engagement in sound workforce planning to ensure that an
adequate number of permanent positions will be available to which
Pathways Participants who successfully complete their Programs can be
converted;
(4) Agency record in using the Pathways Programs as a supplement to
competitive examining, rather than as a substitute for it;
(5) Agency record of publicizing their positions in the Pathways
Programs and recruiting and selecting from a broad array of sources;
and
(6) Any other information the Director deems relevant.
(c) In the event the Director determines that any caps would be
appropriate, OPM will publish notice of such caps in a manner chosen by
the Director.
[[Page 28218]]
Sec. 362.109 Reporting requirements.
Agencies must provide information requested by OPM regarding
workforce planning strategies that includes:
(a) Information on the entry-level occupations targeted for filling
positions under this part in the coming year;
(b) The percentage of overall hiring expected in the coming year
under the Internship, Recent Graduates, and Presidential Management
Fellows Programs; and
(c) For the previous year:
(1) The number of individuals initially appointed under each
Pathways Program;
(2) The percentage of the agency's overall hires made from each
Pathways Program;
(3) The number of Pathways Participants, per Program, converted to
the competitive service; and
(4) The number of Pathways Participants, per Program, who were
separated.
Sec. 362.110 Transition.
OPM will provide written guidance for the orderly transition of
employees currently appointed as students under the Student Educational
Employment Program and current PMFs to the applicable Pathways Program
and may revise that guidance as necessary.
Subpart B--Internship Program
Sec. 362.201 Agency authority.
The Internship Program provides students in high schools, colleges,
trades schools and other qualifying educational institutions, as
defined in Sec. 362.102 of this part, the opportunity to explore
Federal careers as paid employees while completing their education.
Students appointed under this authority are referred to as Interns.
Sec. 362.202 Definitions.
In this subpart:
Student means an individual accepted for enrollment or enrolled and
seeking a degree (diploma, certificate, etc.) in a qualifying
educational institution, on a full or half-time basis (as defined by
the institution in which the student is enrolled), including awardees
of the Harry S. Truman Foundation Scholarship Program under Public Law
93-842. Students need not be in actual physical attendance, so long as
all other requirements are met. An individual who needs to complete
less than the equivalent of half an academic/vocational or technical
course-load immediately prior to graduating is still considered a
student for purposes of this Program.
Sec. 362.203 Filling positions.
(a) Announcement. (1) When an agency accepts applications from
individuals outside its own workforce, it must provide OPM information
concerning opportunities to participate in the agency's Internship
Program. For the purposes of this paragraph (a), ``agency'' means an
Executive agency as defined in 5 U.S.C. 105 and the Government Printing
Office. An Executive department may treat each of its bureaus or
components (first major subdivision that is separately organized and
clearly distinguished from other bureaus or components in work function
and operation) as a separate agency or as part of one agency, but must
do so consistent with its Delegated Examining Agreement. The
information must include:
(i) Position title, series and grade;
(ii) Geographic location of the position, and
(iii) How to apply. A public source (e.g., a link to the agency's
Web site with information on how to apply) for interested individuals
to seek further information about how to apply for Internship
opportunities; and
(iv) Any other information OPM considers appropriate.
(2) OPM will publish information on Internship opportunities in
such form as the Director may determine.
(b) Eligibility. Except as provided in paragraph (h) of this
section, Interns must meet the definition of student in Sec. 362.202
throughout the duration of their appointment.
(c) Qualifications. Individuals may be evaluated against either
agency-developed standards or the OPM Qualification Standard for the
position being filled.
(d) Appointments. (1) An agency may make Intern appointments,
pursuant to its Pathways MOU, using the Schedule D excepted service
appointing authority provided in Sec. 213.3402(a) of this chapter.
(2) Appointments may be made to any position for which the
individual is qualified. The duties of the position to which the
individual is appointed should be related to either the Intern's
academic or career goals.
(3) An agency may:
(i) Appoint an Intern for an initial period expected to last more
than 1 year. Intern appointments are not required to have an end date.
However, agencies are required to specify an end date of the
appointment in the Participant Agreement with the Intern; or
(ii) Appoint an Intern on a temporary basis, not to exceed 1 year,
to complete temporary projects, to perform labor-intensive tasks not
requiring subject-matter expertise, or to fill traditional summer jobs.
The agency may extend these temporary appointments as provided in part
213 of this chapter.
(e) Promotion. An agency may promote any Intern who meets the
qualification requirements for the position. This provision does not
confer entitlement to promotion.
(f) Classification. (1) Intern positions under the General Schedule
or appropriate pay plan must be classified to the -99 series of the
appropriate occupational group.
(2) Intern positions under the Federal Wage System must be
classified to the -01 series of the appropriate occupational group.
(g) Schedules. There are no limitations on the number of hours an
Intern can work per week (so long as any applicable laws and
regulations governing overtime and hours of work are adhered to).
Agencies and students should agree on a formally-arranged schedule of
school and work so that:
(1) Work responsibilities do not interfere with academic schedule;
(2) Completion of the educational program (awarding of diploma/
certificate/degree) and the Internship Program is accomplished in a
reasonable and appropriate timeframe;
(3) The agency is informed of and prepared for the student's
periods of employment; and
(4) Requirements for noncompetitive conversion to a term or
permanent position in the competitive service are understood by all
parties.
(h) Breaks in program. A break in program is defined as a period of
time when an Intern is working but is unable to go to school, or is
neither attending classes nor working at the agency. An agency may use
its discretion in either approving or denying a request for a break in
program.
Sec. 362.204 Conversion to the competitive service.
(a) An agency may noncompetitively convert an Intern who is a U.S.
citizen, to a term or permanent appointment in the competitive service.
(b) To be eligible for conversion, the Intern must have:
(1) Completed at least 640 hours of work experience acquired
through the Internship Program, except as provided in paragraphs (c)
and (d) of this section, while enrolled as a full-time or part-time,
degree- or certificate-seeking student;
(2) Completed a course of academic study, within the 120-day period
preceding the appointment, at a qualifying educational institution
[[Page 28219]]
conferring a diploma, certificate, or degree;
(3) Received a favorable recommendation for appointment by an
official of the agency or agencies in which the Intern served;
(4) Met the qualification standards for the position to which the
Intern will be converted; and
(5) Met agency-specific requirements as specified in the agency's
Participant Agreement with the Intern.
(c)(1) An agency may evaluate, consider, and grant credit for up to
one-half (320 hours) of the 640-hour service requirement in paragraph
(b)(1) of this section for comparable non-Federal internship experience
in a field or functional area related to the student's target position
and acquired while the student:
(i) Worked in, but not for, a Federal agency, pursuant to a formal
internship agreement, comparable to the Internship Program under this
subpart, between the agency and an accredited academic institution;
(ii) Worked in, but not for, a Federal agency, pursuant to a
written contract with a third-party internship provider officially
established to provide internship experiences to students that are
comparable to the Internship Program under this subpart; or
(iii) Served as an active duty member of the armed forces
(including the National Guard and Reserves), as defined in 5 U.S.C.
2101, provided the veteran's discharge or release is under honorable
conditions.
(2) Student volunteer service under part 308 of this chapter and
other Federal programs designed to give internship experience to
students (e.g., fellowships and similar programs), may be evaluated,
considered, and credited under this section when the agency determines
the experience is comparable to experience gained in the Internship
Program.
(d) An agency may waive up to one-half (i.e., 320 hours) of the
640-hour minimum service requirement in paragraph (b)(1) of this
section when an Intern completes 320 hours of career-related work
experience under an Internship Program appointment and demonstrates
high potential by outstanding academic achievement and exceptional job
performance. For purposes of this paragraph:
(1) Outstanding academic achievement means an overall grade point
average of 3.5 or better, on a 4.0 scale; standing in the top 10
percent of the student's graduating class; and/or induction into a
nationally-recognized scholastic honor society.
(2) Exceptional job performance means a formal evaluation conducted
by the student's Internship supervisor(s), consistent with the
applicable performance appraisal program that results in a rating of
record (or summary rating) of higher than Fully Successful or
equivalent.
(e) An agency may not grant a credit or waiver (or a combination of
a credit and waiver) totaling more than 320 hours of the 640-hour
service requirement in paragraph (b)(1) of this section.
Sec. 362.205 Reduction in force (RIF) and termination.
(a) Reduction in force. Interns are covered by part 351 of this
chapter for purposes of RIF.
(1) Tenure Groups. (i) An Intern serving under an appointment for
an initial period expected to last more than 1 year is in excepted
service Tenure Group II.
(ii) A temporary Intern, serving under an appointment not to exceed
1 year, who has not completed 1 year of service, is in excepted service
Tenure Group 0.
(iii) A temporary Intern serving under an appointment not to exceed
1 year, who has completed 1 year of current, continuous service, is in
excepted service Tenure Group III.
(2) [Reserved]
(b) Termination. As a condition of employment, an Intern
appointment expires:
(1) 120 days after completion of the designated academic course of
study, unless the Participant is selected for noncompetitive conversion
under Sec. 362.204, or
(2) Upon expiration of the temporary Internship appointment.
Subpart C--Recent Graduates Program
Sec. 362.301 Program administration.
The Recent Graduates Program provides an entry-level developmental
experience designed to lead to a civil service career in the Federal
Government after successfully completing 1 year under the Program,
unless the training requirements of the position warrant a longer and
more structured training program. Employment under the Recent Graduates
Program may not exceed 2 years plus any agency approved extension of up
to an additional 120 days. Individuals appointed under this authority
are referred to as Recent Graduates. An agency wishing to participate
in the Recent Graduates Program must:
(a) Identify in the MOU the duration of its Recent Graduates
Program, including any criteria used to determine the need for a longer
and more structured training program that exceeds 1 year;
(b) Ensure, within 90 days of appointment, that each Recent
Graduate is assigned a mentor who is an employee outside the Recent
Graduates' chain of command;
(c) Ensure, within 45 days of appointment, that each Recent
Graduate has an Individual Development Plan (IDP) that is approved by
his or her supervisor; and
(d) Provide at least 40 hours of formal interactive training per
year that advances the goals and competencies outlined in each Recent
Graduate's IDP. Mandatory annual training, such as information security
and ethics training, does not count towards the 40-hour requirement.
Sec. 362.302 Eligibility.
(a) A Recent Graduate is an individual who obtained a qualifying
associates, bachelors, master's, professional, doctorate, vocational or
technical degree or certificate from a qualifying educational
institution, within the previous 2 years or other applicable period
provided below.
(b)(1) Except as provided in paragraph (b)(2) of this section, an
individual may apply for a position in the Recent Graduates Program
only if the individual's application is received not later than 2 years
after the date the individual completed all requirements of an academic
course of study leading to a qualifying associates, bachelor's,
master's, professional, doctorate, vocational or technical degree or
certificate from a qualifying educational institution.
(2) A veteran, as defined in 5 U.S.C. 2108, who, due to a military
service obligation, was precluded from applying to the Recent Graduates
Program during any portion of the 2-year eligibility period described
in paragraph (b)(1) of this section shall have a full 2-year period of
eligibility upon his or her release or discharge from active duty. In
no event, however, may the individual's eligibility period extend
beyond 6 years from the date on which the individual completed the
requirements of an academic course of study.
Sec. 362.303 Filling positions.
(a) Announcement. (1) When an agency accepts applications from
individuals outside its own workforce, it must provide OPM information
concerning opportunities to participate in the agency's Recent
Graduates
[[Page 28220]]
Program. For the purposes of this paragraph, ``agency'' means an
Executive agency as defined in 5 U.S.C. 105 and the Government Printing
Office. An Executive department may treat each of its bureaus or
components (first major subdivision that is separately organized and
clearly distinguished from other bureaus or components in work function
and operation) as a separate agency or as part of one agency, but must
do so consistent with its Delegated Examining Agreement. The
information must include:
(i) Position title, series and grade;
(ii) Geographic location of the position;
(iii) How to apply. A public source (e.g., a link to the agency's
Web site with information on how to apply for interested individuals to
seek further information about how to apply); and
(iv) Any other information OPM considers appropriate.
(2) OPM will publish information on Recent Graduate opportunities
in such form as the Director may determine.
(b) Appointments. (1) An agency may make appointments to the Recent
Graduates Program, pursuant to a Pathways MOU executed with the OPM,
under Schedule D of the excepted service in accordance with part 302 of
this chapter.
(2) An agency must appoint a Recent Graduate using the excepted
service appointing authority provided by Sec. 213.3402(b) of this
chapter.
(3)(i) An agency may make an initial appointment of a Recent
Graduate to any position filled under this authority for which the
Recent Graduate qualifies, up to the GS-09 level (or equivalent under
another pay and classification system, such as the Federal Wage
System), except as provided in paragraphs (b)(3)(ii) through (iv) of
this section.
(ii) Initial appointments to positions for science, technology,
engineering, or mathematics (STEM) occupations may be made at the GS-11
level, if the candidate possesses a Ph.D. or equivalent degree directly
related to the STEM position the agency is seeking to fill.
(iii) Initial appointments to scientific and professional research
positions at the GS-11 level for which the classification and
qualification criteria for research positions apply, if the candidate
possesses a master's degree or equivalent graduate degree directly
related to the position the agency is seeking to fill.
(iv) Initial appointments to scientific and professional research
positions at the GS-12 level for which the classification and
qualification criteria for research positions apply, if the candidate
possesses a Ph.D. or equivalent degree directly related to the position
the agency is seeking to fill.
(v) Positions must have progressively more responsible duties that
provide career advancement opportunities (i.e., positions must provide
for career ladder advancement).
(c) Extensions. An agency may extend the Program period for up to
an additional 120 days to cover rare or unusual circumstances or
situations. The agency's Pathways MOU must identify criteria for
approving extensions.
(d) Qualifications. An agency must evaluate candidates using OPM
Qualification Standards for the occupation and grade level of the
position being filled.
(e) Promotions. An agency may promote any Recent Graduate who meets
the qualification requirements for the position. This provision does
not confer entitlement to promotion.
(f) Trial period. The duration of the Recent Graduates appointment
in the excepted service is a trial period.
Sec. 362.304 Movement between agencies.
(a) A Recent Graduate may apply for and accept a new Recent
Graduates appointment with another agency covered by this part, as long
as the agency meets all the requirements for participating in the
Recent Graduates Program.
(b) To move to the new agency, the Recent Graduate must separate
from the current employing agency.
(c) The new employing agency must appoint the Recent Graduate
without a break in service.
(d) Time served under the previous agency's Recent Graduates
Program is credited toward the Program requirements for noncompetitive
conversion eligibility to the competitive service. Because there is no
break in service, the Recent Graduate does not begin a new period in
the Program upon moving to the new agency.
(e) The new employing agency's plan must identify requirements for
Program completion and eligibility for noncompetitive conversion.
Sec. 362.305 Conversion to the competitive service.
(a) An agency may noncompetitively convert a Recent Graduate who is
a U.S. citizen to a competitive service term or permanent position when
the Recent Graduate has:
(1) Successfully completed at least 1-year of continuous service in
addition to all the requirements of the Recent Graduates Program;
(2) Demonstrated successful job performance consistent with the
applicable performance appraisal program established under the agency's
approved performance appraisal system that results in a rating of
record (or summary rating) of at least Fully Successful or equivalent
and a recommendation for conversion by the first-level supervisor; and
(3) Met the OPM Qualification Standard for the competitive service
position to which the Recent Graduate will be converted.
(b) An agency must make the noncompetitive conversion effective on
the date the service requirement is met, or at the end of an agency-
approved extension, if applicable.
Sec. 362.306 Reduction in force and termination.
(a) Reduction in force. Recent Graduates are in excepted service
Tenure Group II for purposes of Sec. 351.502 of this chapter.
Expiration of the Recent Graduates appointment is not otherwise subject
to part 351 of this chapter.
(b) Terminations. (1) Except as provided in paragraph (b)(2) of
this section, as a condition of employment, a Recent Graduate
appointment expires at the end of the agency prescribed Program period,
plus any agency-approved extension, unless the Participant is selected
for noncompetitive conversion under Sec. 362.306.
(2) A Recent Graduate who held a career-conditional or career
appointment in an agency immediately before entering the Program, and
fails to complete the Program for reasons that are not related to
misconduct, poor performance, or suitability, may, at the agency's
discretion, be placed in a permanent competitive service position, as
appropriate, in the employing agency.
Subpart D--Presidential Management Fellows Program
Sec. 362.401 Definitions.
For purposes of this subpart:
Agency PMF Coordinator is an individual, at the appropriate agency
component level, who coordinates the placement, development, and other
Program-related activities of PMFs appointed in his or her agency. The
agency Pathways Programs Officer may also serve as the PMF Coordinator.
Executive Resources Board (ERB) has the same meaning as specified
in Sec. 317.501(a) of this section; in those agencies that are not
required to have an ERB pursuant to that section, it means the senior
agency official or officials
[[Page 28221]]
who have been given responsibility for executive resources management
and oversight by the agency head.
Presidential Management Fellow (PMF) or Fellow is an individual
appointed, at the GS-9, GS-11, or GS-12 level (or equivalent under a
non-GS pay and classification system such as the Federal Wage System),
in the excepted service under Sec. 213.3402(c) of this chapter.
Sec. 362.402 Program administration.
(a) The Director may determine the number of Fellows who may be
appointed during any given year. This determination will be based on
input from the Chief Human Capital Officers Council, as well as input
from agencies not represented on the Council.
(b) Thereafter, subject to the provisions and requirements of this
chapter, an agency may appoint individuals selected by the Director as
Fellows finalists according to its short-, medium-, and long-term
senior leadership and related (senior policy, professional, technical,
and equivalent) recruitment, development, and succession requirements.
(c) The Director will establish the qualification requirements for
evaluating applicants for the PMF Program.
(d) An agency that hires Fellows in field locations outside the
Washington, DC, Metropolitan Area may:
(1) In advance of making the appointment, discuss whether the
finalist wants to do a developmental rotation to agency headquarters
and, if so, make a commitment to allow and fund such a rotation, to the
maximum extent practicable, in accordance with Sec. 362.405(b) of this
part; and
(2) Promote interaction among regional Fellows with the agency
Federal Executive Board (FEB) and permit Fellows to attend FEB-
sanctioned activities in that region.
Sec. 362.403 Announcement, eligibility, and selection.
(a) OPM will announce the opportunity to apply for the PMF Program
and conduct a competition for the selection of finalists as set forth
in this section.
(b) A Presidential Management Fellow is an individual who, within
the previous 2 years, completed an advanced degree from a qualifying
educational institution.
(c) An individual may apply for the PMF Program if:
(1) The individual has obtained an advanced degree within the 2-
year period preceding the Program announcement described in paragraph
(a) of this section, or
(2) The individual is still a student attending a qualifying
educational institution, as defined in paragraph (2)(iii) of the
definition of Qualifying educational institution in Sec. 362.102, and
he or she expects to complete a qualifying advanced degree by August 31
of the academic year in which the competition is held.
(d) An individual may apply for the PMF Program more than once as
long as he or she meets the eligibility criteria. However, if an
individual becomes a finalist and subsequently applies for the Program
during the next open announcement, the individual will forfeit his or
her status as a finalist.
(e) OPM will select Fellow finalists based on an OPM evaluation of
each candidate's experience and accomplishments according to his or her
application and the results of a rigorous structured assessment
process.
(f) OPM will publish and provide participating agencies the Fellow
finalists list for appointment consideration.
Sec. 362.404 Appointment and extension.
(a) Appointments. (1) An agency may make 2-year appointments to the
PMF Program, pursuant to a Pathways MOU executed with the OPM, under
Schedule D of the excepted service in accordance with part 302 of this
chapter.
(2) An agency must appoint a PMF using the excepted service
appointing authority provided by Sec. 213.3402(c) of this chapter.
(3) OPM will establish an eligibility period during which agencies
may appoint Fellow finalists.
(b) Extension. An agency may extend a Fellow's appointment for up
to 120 days to cover rare or unusual circumstances or situations. The
agency's Pathways MOU must identify the criteria for approving
extensions.
(c) Grade. An agency may appoint a Fellow at the GS-09, GS-11, or
GS-12 level or equivalent depending on his or her qualifications.
(d) Trial period. The duration of the PMF appointment in the
excepted service is a trial period.
Sec. 362.405 Development, evaluation, promotion, and certification.
(a) Individual Development Plans. An agency must approve, within 45
days, an Individual Development Plan (IDP) for each of its Fellows that
sets forth the specific developmental activities that are mutually
agreed upon by each Fellow and his or her supervisor. The IDP must be
developed in consultation with the Agency PMF Coordinator and/or the
mentor assigned to the Fellow under paragraph (b)(3) of this section.
(b) Required developmental activities. (1) OPM will provide an
orientation program for each class or cohort of Fellows and will
provide information on available training opportunities known to it.
(2) The agency must provide each Fellow a minimum of 80 hours of
formal interactive training per year that addresses the competencies
outlined in the IDP. Mandatory annual training, such as information
security and ethics training, does not count towards the 80-hour
requirement.
(3) Within the first 90 days of a Fellow's appointment, the agency
must assign the Fellow a mentor, who is a managerial employee outside
the Fellow's chain of command.
(4) The agency must provide each Fellow with at least one
rotational or developmental assignment with full-time management and/or
technical responsibilities consistent with the Fellow's IDP. With
respect to this requirement:
(i) Each Fellow must receive at least one developmental assignment
of 4 to 6 months in duration, with management and/or technical
responsibilities consistent with the Fellow's IDP. As an alternative, a
Fellow may choose to participate in an agency-wide initiative or other
Presidential or Administration initiative that will provide the Fellow
with the experience he or she would have gained through the 4-to-6-
month developmental assignment; and
(ii) The developmental assignment may be within the Fellow's
organization, in another component of the agency, or in another Federal
agency.
(5) The Fellow may receive other short-term rotational assignments
of 1 to 6 months in duration, at the agency's discretion.
(6) Upon the request of OPM, the appointing agency must make
Fellows available to assist in the assessment process for subsequent
PMF classes. Any interactive training provided to a Fellow in
connection with assisting OPM in the assessment process may be counted
toward the minimum 80-hour training requirement in paragraph (b)(2) of
this section.
(c) Promotion. An agency may promote any Fellow who meets the
qualification requirements for the position. This provision does not
confer entitlement to promotion.
(d) Certification of completion. (1) Upon completion of the
Program, the agency's ERB must evaluate each Fellow and determine
whether it can certify in writing that the Fellow met all of the
requirements of the Program, including the performance and
developmental
[[Page 28222]]
expectations set forth in the individual's performance plan and IDP.
The ERB may consult the Fellow's mentor in reaching its determination.
(2) The ERB must notify the Fellow of its decision regarding
certification of successful completion.
(3) ERB certifications must be forwarded to OPM.
(4)(i) If the ERB decides not to certify a Fellow, the Fellow may
request reconsideration of that determination by the Director. Such
reconsideration must be requested in writing, with appropriate
documentation and justification, within 15 calendar days of the date of
the agency's decision. The Director's decision on reconsideration is
not subject to appeal.
(ii) The Fellow may continue in the Program pending the outcome of
his or her request for reconsideration. The agency must continue to
provide appropriate developmental activities during this period.
Sec. 362.406 Movement between agencies.
(a) At any time during his or her appointment in the Program, a
Fellow may move to another agency covered by this part, as long as the
agency meets all the requirements for participating in the PMF Program.
To move from one agency to another during the Program, the Fellow must
separate from the current agency. The new employing agency must appoint
the Participant without a break in service.
(b) The Fellow does not begin a new Program period upon appointment
by the new employing agency. Because there is no break in service, time
served under the previous Program appointment will apply towards the
completion of the Program with the new employing agency.
(c) An agency must notify OPM when appointing a Fellow currently
appointed in another agency.
(d) If the move occurs within the first 6 months of the Fellow's
appointment, the original appointing agency may request reimbursement
of one-quarter of the placement fee from the new appointing agency.
Sec. 362.407 Withdrawal and readmission.
(a) Withdrawal. (1) A Fellow may withdraw from the Program at any
time. Such withdrawal will be treated as a resignation from the Federal
service; however, any obligations established upon admission and
appointment (for example, as a result of accepting a recruitment
incentive under part 575 of this chapter) still apply.
(2) A Fellow who held a permanent appointment in the competitive
service in an agency immediately before entering the Program, and who
withdraws from the Program for reasons that are not related to
misconduct, poor performance, or suitability, may, at the employing
agency's discretion, be placed in a permanent competitive service
position, as appropriate, in that agency. The employing agency's
determination in this regard is not subject to appeal.
(3) An agency must notify OPM when a Fellow withdraws from the
Program.
(b) Readmission. (1) If a Fellow withdraws from the Program for
reasons that are related to misconduct, poor performance, or
suitability, as determined by the agency, he or she will not be
readmitted to the Program at any time.
(2) If a Fellow withdraws from the Program for reasons that are not
related to misconduct, poor performance, or suitability, he or she may
petition the employing original agency for readmission and
reappointment to the Program. Such a petition must be in writing and
include appropriate justification. The agency may approve or deny the
request for readmission. An agency must submit written notification of
approved readmission requests to OPM. The individual's status in the
Program upon readmission and reappointment must be addressed as part of
the agency's submission. The Director may overrule the agency's
decision to readmit and reappoint, and the Director's decision is not
subject to appeal.
Sec. 362.408 Termination and reduction in force.
(a) Termination. (1) An agency may terminate a Fellow for reasons
related to misconduct, poor performance, or suitability.
(2) As a condition of employment, a Fellow's appointment expires at
the end of the 2-year Program period, plus any agency-approved
extension, unless the Participant is selected for noncompetitive
conversion. If an agency does not convert a Fellow at the end of the
Program, as provided in Sec. 362.409 of this part, or extend the
individual's initial appointment under Sec. 362.404, the appointment
expires when certification for Program completion is denied or when the
Director denies the agency's request for an extension.
(3) The agency must provide written notification to OPM when a
Fellow is terminated for any reason.
(b) Reduction in force. Fellows are in the excepted service Tenure
Group II for purposes of Sec. 351.502 of this chapter.
Sec. 362.409 Conversion to the competitive service.
(a) A Fellow must complete the Program within the time limits
prescribed in Sec. 362.404 of this part, including any agency-approved
extension. At the conclusion of that period, the Fellow may be
converted, as provided in paragraph (b) of this section.
(b) An agency may convert, without a break in service, an ERB-
certified Fellow to a competitive service term or permanent
appointment.
PART 531--PAY UNDER THE GENERAL SCHEDULE
0
20. The authority citation for part 531 continues to read as follows:
Authority: 5 U.S.C. 5115, 5307, and 5338; sec. 4 of Public Law
103-89, 107 Stat. 981; and E.O. 12748, 56 FR 4521, 3 CFR, 1991
Comp., p. 316; Subpart B also issued under 5 U.S.C. 5303(g), 5305,
5333, 5334(a) and (b), and 7701(b)(2); Subpart D also issued under 5
U.S.C. 5335 and 7701(b)(2); Subpart E also issued under 5 U.S.C.
5336; Subpart F also issued under 5 U.S.C. 5304 and 5305; E.O.
12883, 58 FR 63281, 3 CFR, 1993 Comp., p. 682; and E.O. 13106, 63 FR
68151, 3 CFR, 1998 Comp., p. 224.
Subpart B--Determining Rate of Basic Pay
0
21. In Sec. 531.212, revise paragraph (a)(3)(v) to read as follows:
Sec. 531.212 Superior qualifications and special needs pay-setting
authority.
(a) * * *
(3) * * *
(v) Employment under an Internship Program appointment under Sec.
213.3402(a) of this chapter.
* * * * *
PART 536--GRADE AND PAY RETENTION
0
22. The authority citation for part 536 continues to read as follows:
Authority: 5 U.S.C. 5361-5366; sec. 4 of the Performance
Management and Recognition System Termination Act of 1993 (Pub. L.
103-89), 107 Stat. 981; Sec. 536.301(b) also issued under 5 U.S.C.
5334(b); Sec. 536.308 also issued under section 301(d)(2) of the
Federal Workforce Flexibility Act of 2004 (Pub. L. 108-411), 118
Stat. 2305; Sec. 536.405 also issued under 5 U.S.C. 552, Freedom of
Information Act, Public Law 92-502.
Subpart A--General Provisions
0
23. In Sec. 536.103, revise the definition of management action to
read as follows:
Sec. 536.103 Definitions.
* * * * *
[[Page 28223]]
Management action means an action (not for personal cause) by an
agency official not initiated or requested by an employee which may
adversely affect the employee's grade or rate of basic pay. However, an
employee's placement in or transfer to a position under a formal
employee development program established by an agency for recruitment
and employee advancement purposes (e.g., Recent Graduates Program) is
considered a management action even though the employee initiates or
requests such placement or transfer.
* * * * *
Subpart C--Pay Retention
0
24. In Sec. 536.301, revise paragraph (a)(5) to read as follows:
Sec. 536.301 Mandatory pay retention.
(a) * * *
(5) A management action that places an employee in a formal
employee development program generally utilized Governmentwide (e.g.,
Recent Graduates Program); or
* * * * *
PART 537--REPAYMENT OF STUDENT LOANS
0
25. The authority citation for part 537 continues to read as follows:
Authority: 5 U.S.C. 5379(g).
0
26. In Sec. 537.102, revise paragraphs (6) and (7) in the definition
of time-limited appointment to read as follows:
Sec. 537.102 Definitions.
* * * * *
Time-limited appointment * * *
(6) A Presidential Management Fellows Program appointment under
Sec. 213.3402(c) of this chapter;
(7) A Recent Graduates Program appointment under Sec. 213.3402(b)
of this chapter; and
* * * * *
PART 550--PAY ADMINISTRATION (GENERAL)
Subpart B--Advances in Pay
0
27. Revise the authority citation for subpart B of part 550 to read as
follows:
Authority: 5 U.S.C. 5524a, 5545a(h)(2)(B); E.O. 12748, 56 FR
4521, 3 CFR, 1991 Comp., p. 316.
0
28. In Sec. 550.202, revise paragraph (c) of the definition of newly
appointed to read as follows:
Sec. 550.202 Definitions.
* * * * *
Newly appointed * * *
(c) A permanent appointment in the competitive service following
termination of employment in an Internship Program (as described in 5
CFR part 362, subpart B), provided such employee--
* * * * *
Subpart G--Severance Pay
0
29. The authority citation for subpart G of part 550 continues to read
as follows:
Authority: 5 U.S.C. 5595; E.O. 11257, 3 CFR, 1964-1965 Comp., p.
357.
0
30. In Sec. 550.703, revise paragraph (f)(5) in the definition of
nonqualifying appointment to read as follows:
Sec. 550.703 Definitions.
* * * * *
Nonqualifying appointment * * *.
(f) * * *
(5) A Presidential Management Fellows Program appointment under
Sec. 213.3402(c) of this chapter.
* * * * *
Subpart M--Firefighter Pay
0
31. The authority citation for subpart M of part 550 continues to read
as follows:
Authority: 5 U.S.C. 5545b, 5548, and 5553.
0
32. In Sec. 550.1302, revise paragraph (2)(iii) of the definition of
firefighter to read as follows:
Sec. 550.1302 Definitions.
* * * * *
Firefighter * * *.
(2) * * *
(iii) Covered by the General Schedule and classified in the GS-
0099, General Student Trainee Series (as required by Sec. 362.203(e)
of this chapter), if the position otherwise would be classified in the
GS-0081 series.
* * * * *
PART 575--RECRUITMENT, RELOCATION, AND RETENTION INCENTIVES;
SUPERVISORY DIFFERENTIALS; AND EXTENDED ASSIGNMENT INCENTIVES
0
33. The authority citation for part 575 continues to read as follows:
Authority: 5 U.S.C. 1104(a)(2) and 5307; subparts A and B also
issued under 5 U.S.C. 5753 and sec. 101, Pub. L. 108-411, 118 Stat.
2305; subpart C also issued under 5 U.S.C. 5754 and sec. 101, Pub.
L. 108-411, 118 Stat. 2305; subpart D also issued under 5 U.S.C.
5755; subpart E also issued under 5 U.S.C. 5757 and sec. 207 of Pub.
L. 107-273, 116 Stat. 1780.
Subpart A--Recruitment Incentives
0
34. In Sec. 575.102, revise paragraph (3)(vi) in the definition of
newly appointed to read as follows:
Sec. 575.102 Definitions.
* * * * *
Newly appointed * * *.
(3) * * *
(vi) Employment under an Internship Program appointment under Sec.
213.3402(a) of this chapter.
* * * * *
PART 890--FEDERAL EMPLOYEES HEALTH BENEFITS PROGRAM
0
35. The authority citation for part 890 continues to read as follows:
Authority: 5 U.S.C. 8913; Sec. 890.301 also issued under sec.
311 of Pub. L. 111-3, 123 Stat. 64; Sec. 890.111 also issued under
section 1622(b) of Pub. L. 104-106, 110 Stat. 521; Sec. 890.112 also
issued under section 1 of Pub. L. 110-279, 122 Stat. 2604; Sec.
890.803 also issued under 50 U.S.C. 403p, 22 U.S.C. 4069c and 4069c-
1; subpart L also issued under sec. 599C of Pub. L. 101-513, 104
Stat. 2064, as amended; Sec. 890.102 also issued under sections
11202(f), 11232(e), 11246(b) and (c) of Pub. L. 105-33, 111 Stat.
251; and section 721 of Pub. L. 105-261, 112 Stat. 2061.
0
36. In Sec. 890.102, revise paragraph (c)(2) to read as follows:
Sec. 890.102 Coverage.
* * * * *
(c) * * *
(2) An employee who is expected to work less than 6 months in each
year, except for an employee who receives an appointment of at least 1
year's duration as an Intern under Sec. 213.3402(a) of this chapter
and who is expected to be in a pay status for at least one-third of the
total period of time from the date of the first appointment to the
completion of the Internship Program.
* * * * *
[FR Doc. 2012-11068 Filed 5-10-12; 8:45 am]
BILLING CODE 6325-P