33738 Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Rules and Regulations

made the erroneous payment.

Accordingly the Comptroller General no

longer has authority to promulgate the

regulations at 4 CFR parts 91 and 92

(Subchapter G—Standards for waiver of

claims for erroneous payments of pay

and allowances, and of travel,

transportation, and relocation expenses

and allowances). Individuals seeking a

waiver should no longer contact GAO

but should direct a request for waiver to

their employing agency.

Accordingly, as set forth in the

preamble and under the authority of

Public Law 104–53, sec. 211(a), 109

Stat. 535, and secs. 103(c), 103(d),

105(b), 116, 125, and 127 of Public Law

104–316, 110 Stat. 3826, GAO amends

4 CFR Chapter I as follows:

1. Subchapter C, consisting of parts 30

through 36, Subchapter D, consisting of

parts 51 through 53 and part 56, and

Subchapter G, consisting of parts 91

through 93, are removed and reserved.

Dated: May 19, 2000.

Robert P. Murphy,

General Counsel, General Accounting Office.

[FR Doc. 00–13192 Filed 5–24–00; 8:45 am]

BILLING CODE 1610–02–P

OFFICE OF PERSONNEL

MANAGEMENT

5 CFR Part 317

RIN 3206–A158

Employment in the Senior Executive

Service

AGENCY: Office of Personnel

Management.

ACTION: Final rule.

SUMMARY: The Office of Personnel

Management (OPM) is amending its

regulations governing career and limited

appointments to the Senior Executive

Services (SES). The amended

regulations emphasize the importance of

executive leadership qualifications in

agency SES selection criteria, strengthen

merit principles, and increase SES

staffing flexibilities to help agencies

recruit the brightest and most diverse

executive cadre possible.

EFFECTIVE DATE: June 26, 2000.

FOR FURTHER INFORMATION CONTACT:

Daliza Salas (202–606–1274, email

desalas@opm.gov) or Marcia Staten

(202–606–1832, email

mkstaten@opm.gov).

SUPPLEMENTARY INFORMATION: The

success of the Senior Executive Service

(SES) rests on the ability of agencies to

employ highly competent, motivated,

and diverse professionals dedicated to

public service who have the requisite

leadership expertise to meet the

challenges facing the Government and

the Nation now and into the future.

The final regulations and

accompanying guidance to agencies are

an outcome of extensive discussions

with stakeholders about improving the

SES. These discussions challenged

stakeholders to think about the future

and whether the way we develop, select,

and manage the SES cadre produces the

kind of executives the Government

needs to meet the leadership challenges

of the 21st century. Although

stakeholder views varied widely, there

was consensus on many ideas,

including increasing agency flexibilities

for SES staffing. Specifically, there was

general support for improving the SES

selection process to ensure that

leadership and executive qualifications

are the major selection criteria, reducing

the paperwork burden on applicants

and agencies, considering options for

delegating QRB administration, and

increasing agency authority to make

limited terms appointments.

On July 30, 1999, OPM published a

proposed rule in the Federal Register

(64 CFR 41334) to amend the

regulations governing career and limited

appointments to the Senior Executive

Service (SES) and Qualifications Review

Board (QRB) certification. We received

24 written comments during the

comment period: 16 from departments

and agencies, 4 from professional

organizations, and 4 from individuals.

There was broad support for the

changes, although some respondents

had serious reservations about the

proposal to delegate QRB administration

to individual agencies via delegation

agreement.

In addition to these regulatory

changes, we have modified internal

procedures and other requirements to

streamline the SES application process,

reduce paperwork requirements, and

improve the QRB certification process.

These modifications provide alternative

methods for documenting executive

qualifications for presentation to QRBs

and improved guidance and instructions

to QRBs to ensure that members fully

understand their role and

responsibilities. We have also suggested

ways for agencies to improve their

recruitment and selection procedures.

OPM’s administrative modifications and

the suggested changes at the agency

level will help agencies and candidates

focus on substance rather than process

and format, and they reinforce the goal

of achieving a highly-qualified, diverse

SES corps. We have summarized these

procedural modifications and

flexibilities in supplemental guidance to

agencies.

Emphasis on Executive Leadership

The key characteristic of an SES

position is executive leadership, and

therefore selection criteria should focus

primarily on leadership qualifications.

Further, the law at 5 U.S.C. 3393

requires agency Executive Resources

Boards to conduct the merit staffing

process for career entry into the SES,

including reviewing the executive

qualifications of each career SES

candidate.

During discussions on improving the

SES, stakeholders confirmed that, in

many agencies, the selection criteria

focuses mainly on candidates’

professional or technical qualifications,

and therefore consideration of executive

qualifications is not getting the full

attention intended by the SES

legislation. To strengthen that focus and

encourage agencies to fully integrate

consideration of executive leadership

qualifications into their selection

processes, the proposed regulations

amended the current provisions to

incorporate the statutory requirements.

Most commenters supported the

proposal. One agency felt there was not

pressing need to revise the current

wording, as what constitutes SES

qualifications changes over time with

new studies and emerging approaches

and theories. We do not agree, given

that the statute requires selection based

on executive qualifications and our

findings that many agencies are not

considering executive expertise in their

SES selections. An August 1999 survey

of SES members reinforces these

findings. Only 56 percent of the senior

executives responding to the survey said

that their agencies strongly emphasize

executive qualifications in evaluating

applications and use them as key factor

in determining who is selected for the

SES. Further, our research tells us that

the emphasis on executive skills and

expertise is even more critical than in

the past and will continue to be of

primary importance in the future. The

survey findings supported this as well.

When asked to rank qualifications for

SES positions now and in five years,

respondents rated executive

qualifications as more important than

technical qualifications today and even

more important in five years.

One agency, while not opposing the

proposal, was concerned that it might

lead to overly prescriptive procedural

requirements. This is not our intent.

Agencies will continue to have the

latitude to design merit staffing

processes to meet their unique mission

requirements, within the framework of

Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Rules and Regulations 33739

law and regulations, including

determining how to ensure that SES

selections are based on consideration of

executive qualifications.

One agency objected to the

requirement that the appointing

authority certify the candidate’s

executive and technical qualifications.

The certification requirement is not

new—it is included in current

regulations at § 317.502(b). The same

agency recommended adding a

statement that the appointing authority

can approve the appointment of a

candidate who does not meet the

executive qualifications but has special

or unique qualities that indicate a

likelihood of executive success.

Selection of a candidate on this basis is

already provided in statute (5 U.S.C.

3393(c)(2)) and current regulations

(§ 317.502(c)).

Two professional organizations

recommended that we require equal

consideration of executive and technical

qualifications to ensure that technical

qualifications are not favored over

executive qualifications. Since the

statute does not make this specification,

we have not adopted the

recommendation. Further, ‘‘equal

consideration’’ would indicate that

technical qualifications should carry the

same weight in SES selections, which is

not the case. Executive qualifications

should be the primary factor. The final

regulations concerning executive

qualifications are adopted as proposed

in order to reinforce the primacy of

executive expertise and encourage

agencies to fully integrate consideration

of executive leadership qualifications

into their selection processes.

Three professional organizations

recommended additional language to

emphasize that recruitment and

selection for initial SES career

appointments should be achieved from

the brightest and most diverse executive

cadre possible. We have added language

to the final regulations that stresses the

importance of reaching out to women,

minorities, and people with disabilities

in SES recruitment and selection. We

have also addressed this in the

supplemental guidance to agencies on

the staffing flexibilities and procedural

modifications.

Delegating QRB Administration

During stakeholder discussions on

improving the SES, several agencies

recommended delegating QRB

administration to agencies to give them

more flexibility to manage their

executive resources. Some were critical

of the paperwork and procedures

connected with QRB certification and

felt that agencies could make process

improvements if the authority were

delegated. OPM agreed to consider the

recommendation, incorporated it into

the proposed regulations, and formally

asked for stakeholder views. The

proposed regulatory changes provided

for delegation of QRB administration to

agencies, on an agency-by-agency basis

via individual delegation agreements,

provided that the focus on leadership

and executive expertise would be

maintained and merit system principles

would be preserved.

Two-thirds of those commenting on

the proposal either supported or voiced

no objections to the proposal. However,

very few indicated an interest in

pursuing a delegation agreement.

Supporters favored the increased

flexibility to manage and be held

accountable for the SES appointment

process. Another commented that

agencies have long records of meritbased selections of individuals with

well-demonstrated SES qualifications.

A few supporters had some

reservations. One stated that delegation

might create undue pressure on QRB

members to certify candidates. Another

commented that fairness might be

jeopardized under delegation and

politicization heightened. A third

commenter said that more benefit could

be obtained through streamlining

paperwork requirements than through

QRB delegation.

One agency, three professional

organizations, and four individuals

strongly opposed the proposal. Key

reasons given were serious concerns

about the ability of agencies to

guarantee an independent peer review,

the potential for abuse of the merit

staffing process and politicization of the

career SES, and the possible adverse

impact on efforts to increase the

diversity of the SES cadre. In addition,

one professional organization

questioned OPM’s authority to delegate

QRB administration. Regarding this

issue, we have determined that OPM’s

broad statutory authority at 5 U.S.C.

1104 for delegating personnel

management functions permits the

delegation of QRB administration.

Although more respondents

supported the proposal than opposed it,

the arguments against delegation were

substantive and persuasive. The

concerns about preserving the

independence of QRB certification and

the perceived potential for politicization

of the career appointment process

expressed by those opposed to the

proposal outweighed comments in favor

of delegation. Since the supporters did

not offer compelling reasons for

proceeding with the proposal, the final

regulations do not include the proposed

amendment to § 317.502 regarding QRB

delegation.

We will strengthen efforts to

encourage senior executives from

diverse backgrounds to serve as QRB

members to ensure that the boards are

representative of the Nation’s diversity.

In addition, we have modified the

procedures and streamlined paperwork

associated with QRB administration to

address concerns that the process

focuses on paper over substance and to

provide more specific and detailed

feedback to agencies on QRB

disapprovals.

Noncareer Conversion Restriction

The current regulation at § 317.502(e)

precludes QRB certification of a

noncareer SES employee for career

appointment in the employee’s current

position or a successor to that position,

because there is no bona-fide vacancy

for which to hold competition. This

regulation was intended to preserve the

merit principle of fair and open

competition in merit selections. Since

the regulation was promulgated,

however, questions have arisen about

the definition of ‘‘noncareer SES

employee.’’ The proposed regulation

strengthens and clarifies the intent of

the current regulation by expanding

coverage to noncareer-type employees,

including noncareer SES appointees and

Schedule C appointees, or the

equivalent. This generally refers to

individuals in or from positions of a

confidential, policy-determining, or

policy-advocating nature.

Commenters concurred with the

proposed revision. One agency

recommended adding certain limited

appointees to those considered to be

noncareer-type employees. These would

be limited appointees not appointed

under an agency’s delegated authority at

§ 317.601(c)(1), which restricts use of

the authority to individuals with career

or career-conditional appointments.

Since limited appointees, regardless of

the method of appointment, are not

considered noncareer-type employees

within the meaning intended by this

provision, we are not adopting the

recommendation.

One agency recommended that we

delete ‘‘or equivalent’’ and restrict

coverage to noncareer SES and Schedule

C appointees only. We believe the

additional language is needed to cover

other categories that might meet the

intent of the provision, so we have not

adopted this recommendation. The final

regulations are adopted as proposed.

SES Probationary Period

The proposal made two changes to the

regulations governing the SES

33740 Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Rules and Regulations

probationary period. One would require

agencies to assess the performance of

new career appointees before the end of

the probationary period and make an

official determination that the appointee

is performing at the level of excellence

expected of a senior executive. The

second change would require that,

during the probationary period, agencies

address the executive development

activities outlined in development plans

used to support QRB certification based

on special and unique qualifications.

Both requirements were an outcome of

stakeholder discussions about making

more effective use of the probationary

period. Stakeholders had serious

concerns about the lack of attention

paid to performance during probation.

They also felt that, when a QRB certifies

candidates on the basis of special and

unique qualifications, stronger oversight

is needed to verify that the executive

development activities promised by the

agency are accomplished.

There was overall support for the

proposals. One agency, while

supporting the concepts, opposed

placing the provisions in regulation.

The agency felt that agencies should be

trusted to manage their own executive

resources effectively under their own

administrative authority. Another

supported the concepts, but said that

the means should be left to each agency.

Another agency opposed the provision,

stating that performance issues can be

addressed through the performance

management system. While these views

have merit, most stakeholders indicated

that something more is needed to

reinforce the importance of paying

attention to performance during

probation.

One professional organization

recommended requiring training in

succession planning and diversity

leadership during probation. These are

important issues, and we are using other

venues to bring their importance to that

attention of agency leadership and

human resources directors. The training

needs of individual appointees vary

widely. While some may need training

in succession planning or diversity

leadership, there are other equally

critical areas where training might be

necessary, such as managing

information technology or measuring

business results. Agencies should have

the flexibility to assess these needs and

determine how to address them.

Two agencies recommended that the

appointing authority be allowed to

delegate the certification responsibility,

and we agree. The final regulations

provide that the appointing authority, or

his or her designee, must certify that the

appointee performed at the level of

excellence expected of a senior

executive during the probationary

period.

Pool of Limited Appointment

Authorities

The proposed regulations would

increase the pool of limited

appointment authorities currently

available to agencies from 2 percent to

3 percent of their total SES allocation.

Use of this pool authority is restricted

to appointments of individuals with

career or career-type appointments

outside the SES.

Most commenters supported this

provision. One agency recommended

that the pool be increased to 5 percent.

One professional organization opposed

the provision, stating that it would

encourage and facilitate more temporary

SES appointments and would

jeopardize OPM’s traditional oversight

role. However, Congress intended that a

number of appointments in the SES be

temporary, and set a maximum of 5

percent of the Governmentwide SES

allocation to prevent excessive use of

the authority. Since the SES was

established in 1978, no more than 2.5

percent have been limited appointees,

well within the congressional limit.

Increasing the agency pool authority by

1 percent gives agencies some

additional flexibility, while giving OPM

enough reserves to address other limited

appointment needs that cannot be met

with the agencies’ delegated authority.

The final rule adopts the amendment as

proposed.

In exercising this delegated authority,

agencies must continue to comply with

all other statutory and regulatory

provisions affecting limited

appointments, e.g., that an appointment

be made only to a general position; that

the appointee meet the qualifications

required for the position; and that the

appointment is to a non-continuing,

project-type position. OPM will

continue to monitor use of this

appointment authority to ensure

compliance with the statutory 5 percent

limit on SES limited appointments

Governmentwide and that appointments

are being made in accordance with

statutory and regulatory requirements.

E.O. 12866, Regulatory Review

This rule has been reviewed by the

Office of Management and Budget in

accordance with E.O. 12866.

Regulatory Flexibility Act

I certify that these regulations will not

have a significant economic impact on

a substantial number of small entities

because the regulations pertain only to

Federal employees and agencies.

List of Subjects in 5 CFR Part 317

Government employees.

Office of Personnel Management.

Janice R. Lachance,

Director.

Accordingly, OPM is amending 5 CFR

Part 317 as follows:

PART 317—EMPLOYMENT IN THE

SENIOR EXECUTIVE SERVICE

1. The authority citation for part 317

continues to read as follows:

Authority: 5 U.S.C. 3392, 3393, 3393a,

3395, 3397, 3593 and 3596.

Subpart E—Career Appointments

2. Amend § 317.501 by revising the

section heading, the first sentence of

paragraph (c)(2), and paragraph (c)(6), to

read as follows:

§ 317.501 Recruitment and selection for

initial SEC career appointment be achieved

from the brightest and most diverse pool

possible.

* * * * *

(c) * * *

(2) Provide that the ERB consider the

executive and technical qualifications of

each candidate, other than those found

ineligible because they do not meet the

requirements of the vacancy

announcement. * * *

* * * * *

(6) Provide that the appointing

authority select from among the

candidates identified as best qualified

by the ERB and certify the candidate’s

executive and technical qualifications.

* * * * *

3. Amend § 317.502 by revising

paragraph (e) to read as follows:

§ 317.502 Qualifications Review Board

certification.

* * * * *

(e) An action to convert a ‘‘noncareertype’’ employee to a career SES

appointment in the employee’s current

position or a successor to that position

will not be forwarded to a QRB. A

‘‘noncareer-type’’ employee includes a

noncareer SES appointee, a Schedule C

appointee, or equivalent.

* * * * *

4. Amend § 317.403 by revising

paragraph (a); redesignating paragraphs

(b) through (f) as paragraphs (c) through

(g), respectively; adding a new

paragraph (b); and revising the last

sentence in newly redesignated

paragraph (f) to read as follows:

§ 317.503 Probationary period.

(a) An individual’s initial

appointment as an SES career appointee

Federal Register / Vol. 65, No. 102 / Thursday, May 25, 2000 / Rules and Regulations 33741

becomes final only after the individual

has served a 1-year probationary period

as a career appointee; there has been an

assessment of the appointee’s

performance during the probationary

period; and the appointing authority, or

his or her designee, has certified that the

appointee performed at the level of

excellence expected of a senior

executive during the probationary

period.

(b) When a career appointee’s

executive qualification have been

certified by a Qualifications Review

Board on the basis of special or unique

qualities, as described in § 317.502(c),

the probationary assessment must

address any executive development

activities the agency identified in

support of the request for QRB

certification.

* * * * *

(f) * * * The individual, however,

need not be recertified by a QRB unless

the individual was removed for

performance or disciplinary reasons.

* * * * *

5. In Subpart F, the heading for the

subpart is revised to read as follows:

Subpart F—Noncareer and Limited

Appointments

6. Amend § 317.601, paragraph (c)(1),

by revising the first sentence to read as

follows:

§ 317.601 Authorization.

* * * * *

(c) * * *

(1) Agencies are provided a pool of

limited appointment authorities equal to

3 percent of their Senior Executive

Service (SES) position allocation, or one

authority, whichever is greater. * * *

[FR Doc. 00–13053 Filed 5–24–00; 8:45 am]

BILLING CODE 6325–01–M

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection

Service

7 CFR Parts 360 and 361

[Docket No. 99–064–2]

Noxious Weeds; Update of Weed and

Seed Lists

AGENCY: Animal and Plant Health

Inspection Service, USDA.

ACTION: Final rule.

SUMMARY: We are amending the noxious

weeds regulations by adding Homeria

spp. (cape tulips) to the list of terrestrial

weeds. Listed noxious weeds may be

moved into or through the United States

or interstate only under a written permit

and under conditions that would not

involve a danger of dissemination of the

weeds. This action is necessary to

prevent the artificial spread of noxious

weeds into noninfested areas of the

United States.

EFFECTIVE DATE: June 26, 2000.

FOR FURTHER INFORMATION CONTACT: Ms.

Polly Lehtonen, Botanist, Permits and

Risk Assessment, PPQ, APHIS, 4700

River Road Unit 133, Riverdale, MD

20737–1236; (301) 734–8896.

SUPPLEMENTARY INFORMATION:

Background

The noxious weed regulations were

promulgated under authority of the

Federal Noxious Weed Act (FNWA) of

1974, as amended (7 U.S.C. 2801 et

seq.), and are set forth in 7 CFR part

360. They contain restrictions on the

movement of listed noxious weeds into

or through the United States and

interstate.

Under the authority of the Federal

Seed Act (FSA) of 1939, as amended (7

U.S.C. 1551 et seq.), the U.S.

Department of Agriculture (USDA)

regulates the importation and interstate

movement of certain agricultural and

vegetable seeds and screenings. Title III

of the FSA, ‘‘Foreign Commerce,’’

requires shipments of imported

agricultural and vegetable seeds to be

labeled correctly and to be tested for the

presence of the seeds of certain noxious

weeds as a condition of entry into the

United States. The Animal and Plant

Health Inspection Service’s (APHIS)

regulations implementing the provisions

of title III of the FSA are found in 7 CFR

part 361. A list of noxious weed seeds

is contained in § 361.6. Paragraph (a)(1)

of § 361.6 lists species of noxious weed

seeds with no tolerances applicable to

their introduction into the United

States.

On December 27, 1999, we published

in the Federal Register (64 FR 72293–

72296, Docket No. 99–064–1) a proposal

to amend the noxious weed regulations

by adding Homeria spp. (cape tulips) to

the list of terrestrial noxious weeds in

§ 360.200(c) and to the list of seeds with

no tolerances applicable to their

introduction in § 361.6(a)(1).

We held a public hearing on the

proposed rule on February 1, 2000. No

one came to speak about the proposed

rule. We also solicited comments

concerning our proposal for 60 days

ending February 25, 2000. We received

one comment by that date. The

comment was from a representative of a

foreign government. We carefully

considered the comment, and have

discussed its concerns below.

Comment: APHIS should conduct its

own comprehensive review to assess the

number of Homeria spp. already present

in the United States and their

distribution, by species.

Response: As stated in our proposed

rule, APHIS has been unable to

determine the number and distribution

of Homeria spp. in the United States.

Based on information available from

literature and known herbarium

collections, there are no known

established, feral populations of

Homeria spp. in the United States. In

our proposed rule, we asked the public

to provide us with information on what

species of Homeria are being planted

and where. Due to the limited resources

available to fund monitoring and survey

programs in regard to noxious weeds,

we are unable to conduct additional

reviews specific to Homeria spp. We

will continue to monitor and conduct

surveys at current levels, and as

resources permit. If, in the future, we

are able to determine that certain

species of the genus Homeria have

become widespread, then we will

consider removing those particular

species from the list of noxious weeds

at that time.

Comment: APHIS should assess the

potential for Homeria spp. to set seeds

under the U.S. cultural practices and the

potential for Homeria spp. to become

established as weeds in agricultural

areas of the United States.

Response: APHIS has no reason to

doubt that most species of Homeria will

set seed in the United States. Using a

simulation model for predicting the

effects of climate on the distribution of

plants, we matched locations of

infestations of Homeria spp. in

Australia to locations with similar

climate in the United States. Based on

the results of the simulation, we have

reason to believe that Homeria spp.

presents a significant risk of becoming

established as a weed in certain areas of

the United States, especially along the

west coast and in Texas.

Prolific seed production is only one

indicator of high dispersal or spread

potential. At least one species of the

genus Homeria, H. miniata, does not

produce viable seeds, but produces

cormils in each leaf axil and around the

developing corm at the base of the plant.

The cormils may remain dormant and

build up in established patches, serving

as effective dispersal agents. If APHIS

determines in the future that certain

species of the genus Homeria do not

produce seed or cormils, we will

consider relieving restrictions on the

importation of those species.