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EPA Needs to Justify

How It Is Using 

Title 42 Hiring Authority

Report No. 15-P-0109 March 5, 2015

U.S. ENVIRONMENTAL PROTECTION AGENCY

OFFICE OF INSPECTOR GENERAL

Science and Research
Report Contributors: Heriberto Ibarra

Janet Kasper

Myka Sparrow

Mary Anne Strasser

Abbreviations

CFR Code of Federal Regulations

EPA U.S. Environmental Protection Agency

GAO U.S. Government Accountability Office

OGC Office of General Counsel

OIG Office of Inspector General

ORD Office of Research and Development

SES Senior Executive Service

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 15-P-0109

March 5, 2015

Why We Did This Review

We performed this audit to 

determine whether the 

U.S. Environmental Protection 

Agency (EPA) is properly

managing its Title 42 hiring 

authority. This project was the

result of a payroll audit being 

performed by the Office of 

Inspector General’s (OIG’s) 

Forensics product line.

The Title 42 hiring authority is a 

flexible hiring mechanism for 

securing the services of 

experienced and talented 

scientists. Title 42 can be used

for renewable appointments 

where the nature of the work or 

the character of the individual’s 

services render customary 

employing methods impractical 

or less effective. It can also be 

used where a scientist would 

be otherwise reluctant to leave 

his or her current position 

because of an inability to meet 

individual salary needs under 

other personnel systems. 

This report addresses the 

following EPA goal or 

cross-agency strategy:

 Embracing EPA as a highperforming organization.

Send all inquiries to our public 

affairs office at (202) 566-2391

or visit www.epa.gov/oig.

The full report is at:

www.epa.gov/oig/reports/2015/ 

20150305-15-P-0109.pdf

 EPA Needs to Justify How It Is Using

Title 42 Hiring Authority

 What We Found

The EPA’s Office of Research and Development’s 

(ORD’s) justification for using its Title 42 hiring 

authority to fill positions is ambiguous. ORD does 

not demonstrate the need to use Title 42 to fill 

positions that were at one time held by Title 5 

employees. Four Title 42 appointees converted 

from Title 5 positions received salary increases 

ranging from $6,149 to $17,700 after the conversion. 

Limited availability of Senior Executive Service positions contributed to ORD’s 

use of Title 42 to acquire desired expertise for scientific leadership positions. As

a result, stakeholders have raised concerns with the agency’s use of the Title 42 

hiring authority. By articulating its approach, the EPA will be showing how the 

remaining 27 authorized Title 42 appointments, with a potential annual salary 

total between $3.5 million and $6.75 million, could be used to fulfill the agency’s 

mission.

 Recommendation and Agency Response

We recommend that the Assistant Administrator for Research and Development 

justify the use of Title 42 for appointments or reappointments, and when ORD 

determines it will pursue a Title 42 appointment or reappointment, it will make 

available to staff a memorandum that demonstrates that customary employing 

methods were impractical or less effective and that the position is in a field 

deemed most critical in the Strategic Research Action Plans. ORD did not agree 

with the recommendation and proposed an alternate approach that we do not 

believe addresses justifying the need to use the authority or the need for more 

transparency in the decisions to use the Title 42 authority.

 Noteworthy Achievements

The EPA has a rigorous process for hiring Title 42 appointees. Based on our 

review of the EPA’s Title 42 Operations Manual and Candidate Evaluation 

Framework, the EPA has implemented an in-depth hiring process in which the 

ORD selecting official may use a panel of external and internal members to 

independently evaluate candidates against the position criteria, and to facilitate 

the review by collective panel members. Candidates go through multiple 

interviews and may be asked to give a presentation on a scientific topic to ORD

staff. ORD stated that it has conducted scientific research that would not have 

been possible without the experts hired through Title 42.

U.S. Environmental Protection Agency

Office of Inspector General

At a Glance

When ORD does not justify 

how and when it is using 

Title 42, it is vulnerable to

speculation of misuse and 

abuse of the authority.
March 5, 2015

MEMORANDUM

SUBJECT: EPA Needs to Justify How It Is Using Title 42 Hiring Authority

Report No. 15-P-0109

FROM: Arthur A. Elkins Jr.

TO: Lek Kadeli, Acting Assistant Administrator

Office of Research and Development

This is our report on the subject audit conducted by the Office of Inspector General (OIG) of the U.S. 

Environmental Protection Agency (EPA). This report contains findings that describe the problems the 

OIG has identified and corrective actions the OIG recommends. This report represents the opinion of the 

OIG and does not necessarily represent the final EPA position. EPA managers in accordance with

established audit resolution procedures will make final determinations on matters in this report. 

The office responsible for implementing the audit recommendation is the Office of Research and 

Development’s Office of Program Accountability and Resource Management.

Action Required

The report recommendation is unresolved. In accordance with EPA Manual 2750, the resolution process 

begins immediately with the issuance of this report. We are requesting a meeting within 30 days 

between the Deputy Assistant Administrator for Research and Development and the OIG’s Assistant 

Inspector General for Audit. If resolution is still not reached, the Office of Research and Development is 

required to complete and submit a dispute resolution request to the Chief Financial Officer to continue 

resolution.

We will post this report to our website at http://www.epa.gov/oig.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

WASHINGTON, D.C. 20460

THE INSPECTOR GENERAL
EPA Needs to Justify How It Is Using 15-P-0109

Title 42 Hiring Authority

Table of Contents

Purpose...................................................................................................................... 1

Background .............................................................................................................. 1

Responsible Office.................................................................................................... 2

Noteworthy Achievements ....................................................................................... 2

Scope and Methodology........................................................................................... 2

Prior Audit Coverage ............................................................................................. 3

ORD Should Develop a Plan for Allocating Title 42 Appointments ....................... 4

EPA Has Not Defined How It will Allocate Title 42 Positions.................................. 4

Title 42 Appointments Hold Scientific Leadership Positions................................... 4

Positions Currently Filled by Title 42 Appointments Were

 Previously Filled With Title 5 Staff..................................................................... 6

Title 42 Appointments Are for a Renewable 5-year Term ...................................... 7

Justification of Title 42 Appointments Needed to Guide Program .......................... 7

Recommendation...................................................................................................... 8

Agency Comments and OIG Evaluation .................................................................. 8

Status of Recommendations and Potential Monetary Benefits ............................. 10

Appendices

A Agency Response to Draft Report................................................................... 11

B Distribution ....................................................................................................... 19
15-P-0109 1

Purpose

The objective of the audit was to determine whether the U.S. Environmental 

Protection Agency (EPA) is properly managing its Title 42 hiring authority. This 

project was the result of a payroll audit performed by the Office of Inspector 

General’s (OIG’s) Forensics product line.

Background

Title 42 U.S. Code § 209(f) and (g) provide the agency with authority to appoint 

special consultants and award fellowships for studies or investigations, without 

regard to the civil service laws.1 The EPA uses Title 42 authority to recruit and 

retain scientific leaders and talent in its different research programs and to retain 

scientists and senior managers by converting them to Title 42. The Office of 

Research and Development (ORD) is the only EPA office delegated the authority 

to allocate positions to be filled through Title 42 within their research and 

development departments. According to the Code of Federal Regulations (CFR) at 

40 CFR § 18.3, Title 42 may be used to secure the services of scientists and 

engineers for a period of limited duration and for research that furthers the agency’s

mission where the nature of the work or the character of the individual’s service 

render customary employing methods impracticable or less effective. ORD said it 

received Title 42 authority because EPA had experienced lost opportunities to hire 

and retain critical science expertise.

The number of Title 42 appointees that the EPA can hire is predicated upon Title II 

of the Interior, Environment and Related Agencies Appropriations Act of 2006 and 

subsequent appropriations laws. The EPA was given authority on the basis of 

budget and program need for ORD to hire using Title 42 beginning in fiscal year 

2006 and, as of February 24, 2014, ORD had 23 Title 42 employees on board. 

Table 1: EPA’s Title 42 hiring authority limits

Public Law

Time period

(fiscal years) Requirement

Title II of the Interior, Environment and 

Related Agencies Appropriations Act of 2006,

Public Law 109-54

2006 to 2011 Authorized the EPA not to exceed

5 appointments per fiscal year for the

ORD.

Omnibus Appropriations Act of 2009,

Public Law 111-8

Amended the language to allow the 

EPA to employ up to 30 persons at any 

one time with per year limits removed.

Department of the Interior, Environment, and 

Related Agencies Appropriations Act, 2010,

Public Law 111-88

2011 to 2015 Amended the language to extend the 

EPA’s Title 42 authority from fiscal year

2011 to 2015.

Consolidated Appropriations Act of 2014 

Public Law 113-76

Increased the number of persons that 

can be employed at any one time to 50.

Source: OIG analysis of public laws.

 

1 As of November 2014, ORD has only made hires under § 209(g).
15-P-0109 2

Each Title 42 appointment’s annual pay should be set at a rate necessary to recruit 

the candidate and should recognize the individual’s scientific contributions as well 

as the duties, responsibilities and complexity of the position. The EPA Title 42 

Operations Manual says the agency uses Title 42 authority as a mechanism to meet 

individual salary needs not provided under other personnel systems. Title 42 

employees can earn pay within or exceeding pay levels found in the Executive 

Schedule, which is a pay schedule applicable to the highest-ranking executive 

appointments in the federal government under Title 5 as shown in Table 2.

Table 2: Salary Ranges of Title 5 Executive Schedule and Title 42 for 2014

Hiring Programs Minimum Pay Rate Maximum Pay Rate

Executive Schedule $147,200 $201,700

Title 42 $130,810 $250,000

Source: OIG analysis from EPA and Office of Personnel Management data.2

Responsible Office

The office responsible for the implementation of the audit recommendations is

ORD’s Office of Program Accountability and Resource Management.

Noteworthy Achievements

The EPA has a rigorous process for hiring Title 42 appointees. The EPA 

Operations Manual provides detailed operating guidance for managers, 

supervisors and human resource specialists on the implementation of Title 42.

Based on our review of the EPA Title 42 Operations Manual, the EPA has 

implemented an in-depth hiring process in which the ORD selecting official may 

use a panel of external and internal members to independently rate and evaluate 

each candidate’s knowledge, skills, abilities and other characteristics related to 

the specific position. Candidates go through multiple interviews and may be 

asked to a give a presentation on a scientific topic to ORD staff. ORD stated that 

it has conducted scientific research that would not have been possible without the 

experts hired under the Title 42 authority.

Scope and Methodology

We conducted this audit from March 2014 to October 2014 in accordance with 

generally accepted government auditing standards, issued by the Comptroller 

General of the United States. Those standards require that we plan and perform 

the audit to obtain sufficient, appropriate evidence to provide a reasonable basis 

for our findings and conclusions based on our audit objective. We believe that 

the evidence obtained provides a reasonable basis for our findings and 

conclusions based on our audit objective.

 

2 The minimum annual pay for Title 42 appointee is the dollar figure equivalent to the rate of pay of the current General Schedule 

grade 15 step 10.
15-P-0109 3

To determine whether the EPA was managing its Title 42 hiring authority, we 

reviewed the relevant laws, regulations and EPA’s Title 42 Operations Manual 

for the operating and implementation guidance. In addition, we conducted 

interviews with agency officials to understand how Title 42 appointees are 

recruited, appointed and compensated. We interviewed 15 of 23 Title 42 

employees, including directors and scientists from ORD’s Immediate Office and 

a cross section of ORD labs and centers. We also interviewed a union 

representative and human resource specialists.

To assess the extent to which the EPA has followed federal and agency guidance,

we reviewed the following documents: 

 Job announcements and position descriptions.

 Qualification materials.

 Acceptance and compensation data.

 Recommendation memorandums.

 Candidate selection evaluations.

These documents provided us with the opportunity to compare ORD practices with 

Title 42 policy and guidance. They also provided context and information that 

enabled us to analyze the EPA’s decision to use Title 42 to recruit for certain 

positions, and determine whether Title 42 was implemented uniformly across ORD.

Prior Audit Coverage

The U.S. Government Accountability Office (GAO) published a report in July 2012 

based on a request to assess the extent that the EPA and the U.S. Department of 

Health and Human Services:

1. Used the authority under sections 209(f) and (g) to appoint and 

compensate employees since 2006.

2. Followed applicable agency policy, guidance and internal controls for 

appointments and compensation. 

The report found that the EPA’s appointment and compensation practices were 

generally consistent with its guidance. However, GAO reported that the EPA did 

not have post-appointment procedures in place to ensure Title 42 employees met 

the ethics requirements to which they had agreed. Since GAO’s report, the EPA 

has implemented a new procedure to address the GAO’s ethical concerns. If the 

Office of General Counsel (OGC) determines that a Title 42 applicant’s public 

financial disclosure form (Office of Government Ethics Form 278) presents a 

potential conflict of interest, OGC will notify the applicant via phone or email. If 

appointed, the employee is required to provide OGC confirmation of required 

actions taken to resolve potential conflicts such as stock divestitures.

Additionally, when OGC ethics personnel issue conflict of interest cautionary 

memoranda to appointees they also send copies to Deputy Ethics Officials to 
15-P-0109 4

implement follow-up procedures. OGC’s management is confident that these 

changes will assist with the monitoring of Title 42 appointees’ post-appointment 

activities, such as financial or non-EPA activity.

ORD Should Develop a Plan for Allocating Title 42 Appointments

ORD’s reasoning for using its Title 42 hiring authority to fill management 

positions is ambiguous. The EPA Title 42 Operations Manual states that ORD

will establish and oversee the process for developing recommendations for the 

allocation of Title 42 positions. ORD does not justify the need to use the Title 42 

authority to fill a position and does not have a plan in place that describes how the 

hiring authority will be used. As a result, ORD is vulnerable to internal and 

external stakeholders’ speculation of misuse and abuse.

EPA Has Not Defined How It will Allocate Title 42 Positions

The EPA uses the Title 42 authority to recruit experts from industry, academia 

and scientific communities to retain existing scientific expertise. However, we 

could not find any documentation that defined ORD’s intent and overall direction 

for the program. ORD says it engages in a process where it determines which 

critical expertise is appropriate for using Title 42 as the mechanism to obtain that 

expertise, but is unable to provide any evidence supporting the process. As of 

February 7, 2014, 78 percent of ORD’s Title 42 appointments were for 

managerial positions and 82 percent of positions now filled by Title 42 

appointments had previously been filled by Title 5 employees.

According to the EPA Title 42 Operations Manual, the ORD Assistant 

Administrator or designee “will establish and oversee the process for developing 

recommendations for allocating Title 42 positions for each fiscal year and will 

approve final allocation recommendations.” In the notification memorandum, the 

audit team requested that the agency provide plans or strategies developed for 

using the Title 42 hiring authority. That request was never fulfilled. ORD 

provided a PowerPoint presentation that showed the elements, benefits and budget 

impacts of Title 42, but there was no plan or strategy included in the presentation.

ORD stated that a strategic plan is not required. While a strategic plan is not 

required under the law, the EPA Title 42 Operations Manual states that there is to 

be a process for developing recommendations for the allocation of Title 42 

appointments each year. We did not find any evidence of such a process.

 

Title 42 Appointments Hold Scientific Leadership Positions

Currently, 18 of the 23 Title 42 appointees hold scientific leadership positions 

within ORD, including Directors, Branch Chief and Deputy Assistant 

Administrator. Our review of the Title 42 position descriptions revealed that the 

position descriptions contained comparable major duties and responsibilities,

extramural resources management, supervisory controls, qualifications and 
15-P-0109 5

scientific contributions, but varied in scientific discipline requirements. The 

primary responsibilities, as described in position descriptions, related to scientific 

leadership as opposed to supervision. Four position descriptions state that 

between 20 and 40 percent of the time will be spent in supervision and mentoring, 

but not all of the position descriptions include that percentage of time. Figure 1 

shows the distribution of Title 42 appointments in ORD as of February 7, 2014.

Figure 1: Organization chart showing the distribution of Title 42 appointments in ORD

*Blue boxes represent Title 42 appointments.

Source: OIG analysis of EPA data. 

We found that as a result of a limited availability of Senior Executive Service (SES)

positions, ORD used Title 42 appointments to fill scientific leadership positions. As 

Assistant 

Administrator for 

Research and 

Development

Deputy Assistant 

Administrator for 

Management

*National 

Center for 

Computational 

Toxicology

Center Director

* 3 Staff 

Scientists

* National 

Center for 

Environmental 

Assessment

2 Directors

*National Center for 

Environmental 

Research

Center Director

* National Exposure 

Research 

Laboratory

4 of 6 Division 

Directors

* National Health 

Environmental Effects 

Research Laboratory

Associate Director for 

Health,

3 of 7 Division 

Directors, and

1 Branch Chief

* 1 Staff 

Scientist

* National Risk 

Management 

Research Laboratory

1 of 5 Division 

Directors

National Homeland 

Security Research 

Center

Office of Program 

Accountability and 

Resource 

Management

Office of Science 

Information 

Management

Office of 

Administration and 

Research Support

* Deputy Assistant 

Administrator for 

Science 

* Air, Climate 

and Energy

National 

Program 

Director

* Chemical Safety 

for Sustainability

National Program 

Director

* Safe and 

Sustainable 

Water 

Research

National 

Program 

Director

Sustainable and 

Healthy 

Community

Human Health 

Risk 

Assessment

Homeland 

Security
15-P-0109 6

stated in the 2010 National Research Council report, The Use of Title 42 Authority at 

the U.S. Environmental Protection Agency: A Letter Report, ORD determined that a 

number of its scientific leadership positions had been chronically vacant because of 

the lack of SES positions the report recommended that the positions be filled using 

Title 42 authority. Additionally, a director stated that he was a GS-15 at a small 

facility that could not justify an SES position, and Senior-Level or Scientific or 

Professional positions would not allow him to accomplish his goals. Another director 

said that without Title 42, ORD would have to hire below the SES level because 

ORD would not get additional SES positions.

Positions Currently Filled by Title 42 Appointments Were Previously 

Filled With Title 5 Staff

We found that 19 of the 23 Title 42 positions we reviewed were previously held 

by Title 5 employees at lower salaries. The EPA Title 42 Operations Manual 

states that the authority is a mechanism to be used when individual salary needs 

cannot be met or customary employment methods are impractical or less 

effective. Based on our review of job announcement documentation to fill the 23

ORD positions under Title 42 authority, there is limited evidence that 

demonstrated customary employing methods were impractical or less effective. In 

addition, in four instances it appears that the agency already had the talent inhouse, as four employees initially hired under Title 5 were converted, through 

competitive and noncompetitive hiring processes, to Title 42 at higher salaries for 

the same position. Table 3 provides a comparison of salaries of four employees 

before and after their conversion to a Title 42 position.

Table 3: Salary comparison for four converted employees

Example Title 5 salary Title 42 salary Difference

1 $156,973 $171,715 $14,742

2 144,550 153,223 8,673

3 175,695 181,844 6,149

4 165,300 183,000 17,700

Source: Agency Initial Compensation Forms.

ORD believes Title 42 is necessary to recruit and maintain the quality of scientists 

to lead its science research programs. For example:

 One director said that it would be appropriate to appreciate the level of

expertise Title 42 professionals provide because they can always make 

more money if they worked elsewhere. To retain high-level staff, ORD 

needs to be able to offer premium salaries.

 One director stated that he would not have taken the position if he did not 

receive premium pay. This appointee had been a Title 5 employee with the 

EPA, competed for the position, and was then converted to a Title 42 

employee.
15-P-0109 7

ORD said it uses the Title 42 authority to find top-notch experts to lead its 

different research programs. ORD was granted Title 42 authority because it

lacked special pay authority to compete with academia, private industry and other 

federal agencies when recruiting and retaining top-level talent. Historically, the

EPA lost critical recruitment and retention opportunities with regard to both 

science and science leadership positions. Based on our review, however, we found 

that ORD did not always demonstrate the need to use Title 42 to recruit or retain 

staff for these 19 positions to achieve the level of expertise it needed.

Title 42 Appointments Are for a Renewable 5-year Term

The Title 42 positions at the agency are classified as Environmental Protection 

Research Fellowships for the purpose of securing services of talented scientists 

and engineers for a period of limited duration and for research that furthers the 

EPA’s mission. ORD stated that it benefited from having term-limited 

appointments because the term limits provide the flexibility ORD needs to lead 

science in a new direction or adapt to changes that arise. To fill the term-limited 

Title 42 appointments, ORD tried to find the most qualified person to address the 

research drivers and demands. Term limits are set because there may be a new 

direction or the programs do not get the funding or support by Congress, and 

Title 5 could never provide this degree of flexibility. 

The EPA Title 42 Operations Manual says appointments are initially for a period 

ranging from 1 year and 1 day to 5-year terms, which may be renewed indefinitely. 

As of February 7, 2014, six of the 23 Title 42 appointees completed their first term 

and had been renewed for a second term. Recommendation memorandums for 

renewed employees focus on past accomplishments, and 50 percent of the 

recommendations do not address plans or goals for the new term. In addition, Title 

42 appointment renewals are recommended based on measurable performance;

however, the reappointment justifications are not clearly defined.

Justification of Title 42 Appointments Needed to Guide Program

The law, regulations and EPA’s Title 42 Operations Manual do not require the 

agency to justify using the Title 42 hiring authority to fill a position, nor do they 

require the agency to demonstrate a need cannot be met by using Title 5 or 

another hiring authority. ORD does not have a process to annually develop

recommendations for allocating Title 42 positions and believes it has justified its 

need for using the Title 42 hiring authority as an overall organizational need.

ORD does not have any requirement to demonstrate that a position could not be 

filled under any other authority before recruiting under Title 42. Instead of using 

other personnel systems first to hire for a position, ORD chooses when to hire 

through the Title 42 authority on a case-by-case basis.

The agency hires Title 42 appointees under Environmental Protection Research 

Fellowships, which encourage and promote research, studies and investigations 
15-P-0109 8

related to the protection of human health and the environment with the 

recruitment of talented scientists and engineers for a period of limited duration for 

research that furthers the EPA’s mission. However, because ORD has not 

articulated its approach for allocating the 50 Title 42 appointments it is 

authorized, and justified the need to use the hiring authority to fill positions, it is 

susceptible to concerns about how the EPA is using this authority. By articulating 

its approach, the EPA will be showing how the remaining 27 authorized Title 42 

appointments, with a potential annual salary total between $3.5 million and $6.75 

million, could be used to fulfill the agency’s mission.3

Recommendation

We recommend that the Assistant Administrator for Research and Development:

1. Justify the use of Title 42 for appointments or reappointments, and when 

ORD determines it will pursue a Title 42 appointment or reappointment, it 

will make available to staff a memorandum that demonstrates that 

customary employing methods were impractical or less effective and that 

the position is in a field deemed most critical in the Strategic Research 

Action Plans.

Agency Comments and OIG Evaluation 

In responding to the draft report, the ORD Acting Assistant Administrator stated 

that the Title 42 authority is an essential tool for enabling EPA research to 

position its workforce to better adapt to changing priorities. ORD said that, 

historically, it had not been able to compete for high-quality scientists and science 

leaders because of the lack of competitiveness due to limitations placed on the 

agency by Title 5. EPA needs the Title 42 authority to attract, hire and retain the 

highest-quality scientists and engineers now and in the future if it is to effectively 

and efficiently support the agency’s mission in protecting health and the 

environment. The Title 42 authority is a critical mechanism for EPA to recruit and 

retain people who have substantial creative, scientific and technical capabilities, 

and to compete for these people with private industry, academia and other federal 

agencies.

The Title 42 authority allows the agency to maintain workforce flexibility and 

critical expertise in the face of emerging and rapidly changing scientific and 

technological approaches. The science leaders that ORD has recruited and 

retained using Title 42 are world-renowned experts in their field and are leading 

cutting-edge research programs in ORD to address the environmental issues of the 

21st century. These science leaders are transforming ORD’s research in areas such 

as computational toxicology, risk assessment, air pollutants and human health 

 

3 Total annual salaries calculated by multiplying the number of remaining authorized Title 42 appointments as of February 7, 

2014, by the minimum and maximum Title 42 pay rates (27 x $130,810 = $3,531,870 and 27 x $250,000 = $6,750,000).
15-P-0109 9

effects. Many of ORD’s research programs are years ahead because of the impact 

of its Title 42 appointees.

The EPA proposed an alternate approach to addressing the perceived transparency 

issue. ORD proposed documenting the decision to use the Title 42 authority 

upfront on a case-by-case basis as needs are identified to address the EPA’s 

current and emerging priorities—specifically, the major existing and emerging 

topics in environmental health research—as reflected in ORD’s Strategic 

Research Action Plans. This documentation will take the form of request 

memorandums that are approved or disapproved by the ORD Assistant 

Administrator or designee and maintained in ORD’s records. 

After the response to the draft report was received, OIG staff met with the 

Assistant Administrator for Research and Development to discuss the report. 

During that meeting the AA mentioned the use of market salary surveys as a 

method for demonstrating that customary employing methods were less practical. 

We subsequently reviewed several examples of market surveys and the EPA Title 

42 Operations Manual. EPA revised the operations manual in February 2015 to 

include market salary data as part of the process for justifying Title 42 positions. 

However, the market salary survey is to be in addition to an annual 

recommendation on allocating Title 42 positions.

The OIG believes ORD’s proposed alternative has not addressed the issue of 

making decisions to use Title 42 transparent and ensuring that the decision to use 

Title 42 is supported. Therefore, the recommendation is unresolved. The audit 

resolution process will be used to resolve the recommendation.
15-P-0109 10

Status of Recommendations and 

Potential Monetary Benefits

RECOMMENDATIONS

POTENTIAL MONETARY 

BENEFITS (in $000s)

Rec. 

No.

Page 

No. Subject Status1 Action Official

Planned 

Completion 

Date

Claimed 

Amount

Agreed-To 

Amount

1 8 Justify the use of Title 42 for appointments or 

reappointments, and when ORD determines it will 

pursue a Title 42 appointment or reappointment, it 

will make available to staff a memorandum that 

demonstrates that customary employing methods

were impractical or less effective and that the 

position is in a field deemed most critical in the

Strategic Research Action Plans.

U Assistant Administrator for

Research and Development

$3,531.8

1 O = Recommendation is open with agreed-to corrective actions pending.

C = Recommendation is closed with all agreed-to actions completed. 

U = Recommendation is unresolved with resolution efforts in progress.
15-P-0109 11

Appendix A

Agency Response to Draft Report

(Received November 19, 2014)

MEMORANDUM

SUBJECT: Response to the OIG Draft Report, “EPA Needs More Transparency in Use of 

Title 42 Hiring Authority,” Project No. OA-FY14-0184

FROM: Lek Kadeli, Acting Assistant Administrator

Office of Research and Development (ORD)

TO: Arthur Elkins, Jr., Inspector General

Office of Inspector General (OIG)

Thank you for the opportunity to review and comment on the OIG draft report “EPA Needs More 

Transparency in Use of Title 42 Hiring Authority,” (Project No. OA-FY14-0184). I appreciate 

OIG’s recognition that EPA developed a rigorous, in-depth process for hiring high-quality 

scientists and science leaders through its Title 42 authority. The OIG acknowledges that “[t]he 

EPA Operations Manual provides detailed operating guidance for managers, supervisors and 

human resource specialists on the implementation of Title 42,” and that EPA has undergone 

other favorable evaluations, such as the GAO audit HUMAN CAPITAL: HHS and EPA Can 

Improve Practices Under Special Hiring Authorities,” (2012). In response to the draft report 

ORD offers the following comments.

General Comments

EPA received the authority to make appointments using 42 U.S.C §209 in the Office of Research 

and Development in FY 2006 under Public Law 109-54 to enable EPA to compete with industry 

and academia for high-quality scientists and science leaders. Since that time Congress expanded 

and extended EPA’s Title 42 authority (Public Law 111-8, Public Law 111-88, and Public Law 

113-76). We note that Table 1 left out Public Law-111-88 that extended EPA’s authority from 

FY 2011 to FY 2015. 

While EPA’s authority under Title U.S.C. §209 includes the provisions in paragraphs (f) and (g) 

in §209, to this point the Agency has only made hires under the (g) portion of that authority. The 

language in the first paragraph of the Background section of the OIG draft report does not state 

that explicitly.

The primary basis for the Agency receiving Title 42 authority was because EPA had experienced 

lost opportunities to hire and retain critical science expertise. The Agency did not have a hiring 

authority that would enable it to compete with private industry, academia and other Federal 
15-P-0109 12

organizations. This information is important and we strongly suggest capturing this in the 

Background section of the OIG draft report.

In 2010, the National Academy of Science (NAS) reviewed EPA’s use of its Title 42 authority 

and concluded that Title 42 is the only “hiring mechanism or authority available to EPA...to 

recruit and retain world-class scientists and engineers,” and that “EPA has approached the use of 

Title 42 prudently” to hire outstanding candidates and retain top scientists. 

Foremost, Title 42 is a hiring and retention authority; a program exists to implement the 

authority so an overall long-term plan or strategy for “the program” independent of ORD’s 

research planning process and rapidly changing research needs cannot exist. In addition, it 

would undercut the importance of the flexibility of the authority to be used on an as-needed 

basis. In addition, Table 2 and its corresponding footnote indicate that the “minimal annual pay 

for Title 42 appointee is the dollar figure equivalent to the rate of pay of the current General 

Schedule grade 15 step 10.” The footnote leaves out that locality pay is incorporated into this 

figure. Table 2 should be changed to reflect the locality pay, which would set the minimum 

salary figure at $149,333. 

While I understand the OIG analysis of EPA’s implementation of the Title 42 authority, there are 

several areas where clarification is needed. ORD provides the following specific comments to 

the draft report.

Specific Comments

Prior Audit Coverage:

ORD consulted with OGC on this section since it refers to their work. OGC/Ethics provides the 

following comments on this section of the draft report.

On page 3, the draft report states:

If the Office of General Counsel (OGC) determines that a Title 42 applicant’s investment 

activity represents a conflict of interest, OGC will notify the employee directly via phone 

or email to send confirmation of stock divestments.

Additionally, when OGC ethics personnel issue conflict of interest cautionary memos to 

appointees, they also send copies to Deputy Ethics Officials in order to implement followup procedures. OGC’s management is confident that these changes will assist with the 

OIG Response 1.

We made changes to the report for each of ORD’s comments except including locality pay in 

the Table 2 calculations. Since the Title 42 position can be located in any location, locality 

pay can vary. Therefore, we used the base pay General Schedule.
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monitoring of the Title 42 appointees’ post appointment activities, such as financial or 

non-EPA associational activity. 

OGC/Ethics does not understand what the phrase “investment activity” is intended to convey. It 

implies that OGC/Ethics examines the applicant’s trading history, which is not true. Instead, 

OGC/Ethics examines the applicant’s completed Office of Government Ethics (OGE) Form 278 

for both potential conflicts issues as well as potential impartiality concerns. As written, the last 

sentence of the first paragraph above is inaccurate. For example, OGC/Ethics would never send 

an applicant “confirmation of stock divestments” because we do not know what that term means. 

What OGC/Ethics does at this stage is to articulate to the applicant what s/he must do if 

appointed, but we cannot direct any non-employee to take any action. OIG refers to the term 

“stock divestments”, the terminology OGC/Ethics uses is “stock divestiture.” OGC/Ethics 

would not send “confirmation” of stock divestiture because OGC/Ethics is not the owner of the 

asset and has no idea when it is sold. 

It is possible that OIG is trying to describe what happens when OGC identifies a conflict and, 

when the applicant becomes an employee, directs the employee to sell. In that case, OGC/Ethics 

determines whether the employee is eligible for a certificate of divestiture (CD) and, if so, seeks 

approval from OGE for the CD. Upon receiving the CD from OGE, OGC/Ethics sends it to the 

employee and receives notification (a 278-T) when the conflicting stock is sold. 

OGC/Ethics suggests changing the above paragraphs as follows:

If the Office of General Counsel (OGC) determines that a Title 42 applicant’s public 

financial disclosure report, Office of Government Ethics (OGE) Form 278, presents any 

potential conflict of interest, then OGC will notify the applicant directly via phone or email 

to implement an effective remedy should the applicant be selected for an EPA position.

Additionally, when OGC/Ethics officials issue conflict of interest cautionary memoranda 

to appointees, they also send copies to the respective Deputy Ethics Officials in order to 

implement follow-up procedures. 

On page 4, the draft report states:

 

During our review, we found that the agency informed some employees of impartiality 

regulations and did not inform others.

OGC/Ethics disagrees with this conclusion. All Title 42 employees from outside EPA are given 

initial ethics briefings by OGC/Ethics that cover impartiality as one of the required elements of 

initial ethics training. See 5 CFR 2638.703. Title 42 appointees who were already federal 

employees are given initial ethics briefings as part of the federal orientation and annual ethics 

training.

OIG Response 2.

We made changes to the report for each of ORD’s comments. 
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EPA Has Not Supported the Need to Use Title 42 to Fill Existing Positions:

On page 4, the draft report states:

According to the EPA Title 42 Operations Manual ‘[t]he AA-ORD or designee will 

establish and oversee the process for developing recommendations for allocating Title 42 

positions for each fiscal year and will approve final allocation recommendations.’ In the 

notification memorandum, the team requested that the agency provide plans or strategies 

developed for using the Title 42 hiring authority. That request was never fulfilled. ORD 

provided a PowerPoint presentation. ORD stated that a strategic plan is not required. 

While a strategic plan is not required under the law, the operations manual states that 

there is to be a process for developing recommendations for the allocation of Title 42 

appointments each year. We did not find any evidence of such a process.

The draft report does not accurately portray the information ORD provided to the OIG request. 

The PowerPoint presentation the OIG refers to includes a table of the types of positions that 

ORD historically lost opportunities to recruit or retain scientists and science leaders because it 

could not compete with academia, private industry and other federal agencies. These positions 

include senior science leaders such as an Associate Director for Health, key laboratory Division 

Directors, senior scientists and engineers, and high quality staff scientists and engineers. These 

are the exact types of positions ORD is filling using its Title 42 authority.

In addition, EPA continues to use its Title 42 authority on a case by case basis as needs are 

identified through the research planning process, and not by classes of positions. EPA’s use of 

the authority has been prudent and conservative, consistent with the budgetary realities and 

programmatic priorities.

Title 42 Appointments Hold Management Positions:

On page 6 the draft report states:

We found as a result of a limited availability of Senior Executive Service positions, ORD 

used Title 42 appointments to fill management positions.

OIG Response 3.

ORD did provide OIG staff with a Powerpoint presentation that included positions that were 

historically lost because it could not compete. However, the EPA’s Title 42 Operations 

Manual states that the Assistant Administrator or designee shall establish a process for 

allocating Title 42 positions each year. The Powerpoint presentation did not include this type 

of information and ORD was not able to provide a document with the information described 

in the operations manual.
15-P-0109 15

On page 6 the draft report also states:

Additionally, an ORD manager stated that he was a GS-15 at a small facility that could 

not justify an SES position, and Senior-Level or Scientific or Professional positions 

would not allow him to accomplish his goals. Another director said without Title 42, 

ORD would have to hire below the Senior Executive level because ORD would not get 

additional Senior Executive Service positions.

The interviews cited by the IG on page 6 of the draft report, though anecdotal in nature, provide 

evidence of the limitations placed on EPA by Title 5. Historically, ORD has not been able to 

compete for high quality scientists and science leaders because of the lack of competitiveness 

due to limitations placed on the agency by Title 5. This is the reason EPA and other agencies 

were granted the authority to hire under 42 U.S.C 209. The science leaders we have recruited 

and retained using Title 42 are world-renowned experts in their field and are leading cutting-edge 

research programs in ORD to address the environmental issues of the 21st century. These science 

leaders are transforming ORD’s research in areas such as computational toxicology, risk 

assessment, air pollutants, and human health effects. Many of ORD’s research programs are 

years ahead because of the impact of our Title 42 appointees. While some of these hires are in 

supervisory roles, without these science leaders, whom ORD would not have obtained without 

Title 42, ORD could not fulfill its mission. 

Positions Currently Filled by Title 42 Appointments were Previously Filled with Title 5 Staff:

On page 6 the draft report states:

We found that 19 of 23 Title 42 positions we reviewed were previously held by Title 5 

employees at lower salaries. The Title 42 Operations Manual states that the authority is 

a mechanism to be utilized when individual salary needs cannot be met or customary 

employment methods are impracticable or less effective. Based on our review of job 

announcement documentation to fill the 23 ORD positions under Title 42 authority, there 

is no evidence that demonstrated customary employing methods were impracticable or 

less effective. In addition, in four instances it appears that the agency already had the 

talent in-house, as four employees initially hired under Title 5 were converted to Title 42 

at higher salaries for the same position. 

Even though 19 of the 23 positions currently filled by Title 42 appointees had been held 

previously by Title 5 employees at lower salaries, many of these positions were vacant for 

several years because ORD could not compete for the needed scientific expertise. This is the 

reason why EPA began using Title 42 authority was due to its inability to successfully recruit 

and retain the type of experts we needed to fill existing positions.

Though the EPA Title 42 Operations Manual does include the language you referenced above, 

no EPA policy or guidance requires ORD to show documentation that other hiring authorities are 

less effective before using Title 42 to recruit for the expertise that is needed.
15-P-0109 16

Just to clarify, the Title 42 authority is a recruiting and retention tool, not a means of classifying 

a position. The use of the authority to fill a position is based on the expertise required. Of the 23 

Title 42 employees examined as part of this review, 19 (83%) of these individuals came from 

outside of the federal government. Of those individuals hired from inside EPA, all but one were 

selected through a rigorous competitive process, which includes an evaluation of their scientific 

credentials by subject matter experts from inside and outside the Agency. 

The one individual who EPA directly converted to Title 42 is recognized as one of the leading 

international experts in Computational Toxicology. At the time of the conversion, he was 

continuing to receive competing job offers from external organizations. Given the factors 

referenced above, Title 42 was the only hiring mechanism available to provide additional 

compensation in order to retain such an outstanding leader in environmental research.

On page 7, the draft report states:

Based on our review, we found that ORD did not demonstrate the need to use Title 42 to 

recruit or retain staff for these 19 positions to achieve the level of expertise it needed.

The basis for this conclusion seems to be that most of the positions filled were once filled by 

Title 5 employees. As mentioned previously, most ORD positions were once filled by Title 5 

employees. However, EPA (like other science agencies) has determined that Title 5 has limited 

its ability to build the type of world-class science organization necessary to support its mission. 

A conclusion regarding ORD’s “need to use Title 42 to recruit and retain staff” can only be 

based on the current and future science requirements of the agency, not previous hiring practices. 

ORD has a rigorous research planning process through which we identify needs, including the 

need for scientific expertise. The science leaders we have recruited and retained using Title 42 

are world-renowned experts in their field and are leading cutting-edge research programs in 

ORD to address the environmental issues of the 21st century. These science leaders are 

transforming ORD’s research in areas such as computational toxicology, risk assessment, air 

pollutants, and human health effects. 

Title 42 Appointments are for a Renewable 5-year Term:

On page 7, the draft report states:

The Title 42 Operations Manual says appointments are initially for a period ranging 

from one year and one day to five-year terms, which may be renewed indefinitely. As of 

February 7, 2014, six of the 23 Title 42 appointees completed their first term and had 

been renewed for a second term. Recommendation memorandums for renewed 

employees focus on past accomplishments, and 50 percent of the recommendations do not 

address plans or goals for the new term. In addition, Title 42 appointment renewals are 

recommended based on measurable performance; however, the reappointment 

justifications are not clearly defined.

In its 2010 report, the NAS recommended that ORD finalize a process for reviewing and 

approving extensions of Title 42 appointments. Based on this recommendation, ORD developed 
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a rigorous process similar to its Technical Qualifications Board process. This process utilizes 

internal and external experts to review the impact the Title 42 appointee has made to ORD and 

EPA’s mission and on their scientific field of expertise. The term renewal process was 

implemented as a pilot and improved after the pilot process ended.

Allocation of Title 42 Appointments Needed to Guide Program:

On page 8, the draft report states:

However, because ORD has not articulated its approach for allocating the 50 Title 42 

appointments it is authorized, and justified the need to use the hiring authority to fill 

positions, it is susceptible to concerns about how the EPA is using this authority. 

While I appreciate the OIG’s recognition that there is no requirement for ORD to justify using 

Title 42 or demonstrate that needs cannot be met using Title 5 authorities, I disagree that ORD 

has not articulated its approach to determining how to fill positions. As I have stated previously, 

ORD uses the Title 42 authority on a case by case basis to fill critical expertise needs. 

In addition, several outside expert panels have reviewed EPA’s use of Title 42 and have all 

approved of ORD’s approach in implementing this authority. In both 2010 and 2014, the NAS 

iterated that Title 42 is essential to EPA’s ability to complete its mission, and that the agency be 

granted permanent authority. In its 2010 report, the NAS, also, applauded EPA on its prudent 

approach to using its Title 42 authority. 

 

To address these perception issues, the OIG is recommending:

That the Assistant Administrator, Office of Research and Development [b]e more 

transparent in its use of Title 42 authority appointments by creating an annual plan each 

year that is available to staff, or develop and document an approach for allocating Title 

42 appointments, including justifying the need for reappointments. 

EPA continues to use its Title 42 authority on a case by case basis as needs are identified through 

the research planning process, and not by classes of positions. EPA’s use of the authority has 

been prudent and conservative, consistent with the budgetary realities and 

programmatic priorities. Therefore, ORD proposes a different approach to addressing the 

perceived transparency issue. ORD will document the decision to use the Title 42 authority 

upfront on a case by case basis as needs are identified to address EPA’s current and emerging 

priorities, specifically the major existing and emerging topics in environmental health research, 

as reflected in ORD’s Strategic Research Action Plans. This documentation will take the form of 

request memoranda that are approved or disapproved by the ORD Assistant Administrator or 

designee and maintained in ORD’s records.

The Title 42 authority is an essential tool for enabling EPA research to position its workforce to 

better adapt to changing priorities. EPA needs the Title 42 authority in order to attract, hire, and 

retain the highest-quality scientists and engineers now and in the future if it is to effectively and 

efficiently support the Agency’s mission in protecting health and the environment. The Title 
15-P-0109 18

42 authority is a critical mechanism for EPA to recruit and retain people who have substantial 

creative, scientific, and technical capabilities, and to compete for these people with private 

industry, academia, and other federal agencies. The Title 42 authority allows the Agency to 

maintain workforce flexibility and critical expertise in the face of emerging and rapidly changing 

scientific and technological approaches. In particular, the term nature of the Title 

42 appointments promotes increased workforce flexibility that allows for cross-fertilization with 

other sectors and stakeholders in response to changes in direction as dictated by the emerging 

science needs of the Agency.

Because of the significant concerns addressed above, I ask you to seriously consider ORD’s 

response to the draft report recommendation and comments, as the final report is prepared. As 

required by the EPA Order 2750, our written response to the final report will address any 

recommendations that may be included at that time. 

If you have any questions, please contact Amy Battaglia at (202) 564-6701.

cc: Arthur Elkins

Nancy Gelb

David Bloom

Avi Garbow

Robert Kavlock

Ramona Trovato

Amy Battaglia

Hyon Kim
15-P-0109 19

Appendix B

Distribution

Office of the Administrator

Assistant Administrator for Research and Development

Agency Follow-Up Official (the CFO)

Agency Follow-Up Coordinator

General Counsel 

Associate Administrator for Congressional and Intergovernmental Relations 

Associate Administrator for Public Affairs

Deputy Assistant Administrator for Science, Office of Research and Development

Deputy Assistant Administrator for Research and Science Advisor, Office of Research 

and Development

Director, Office of Program Accountability and Resource Management, Office of Research 

and Development

Audit Follow-Up Coordinator, Office of Research and Development