Enhancing EPA Science Capability for a Complex Future: Recommendations for Use of Title 42 Special Hiring Authority (2024)
Chapter: 1 Introduction
1
Introduction
The Office of Research and Development (ORD) of the U.S. Environmental Protection Agency (EPA) conducts research that helps to provide the scientific foundation for agency decision-making to fulfill EPA’s mission of safeguarding human health and ecosystems from environmental pollutants (EPA, 2023a). ORD employees perform a wide range of science and engineering functions that include research to meet the immediate needs of the agency in carrying out regulatory mandates and research to address emerging environmental challenges.
The landscape of scientific research and development is in a constant state of evolution, and EPA faces the challenge of ensuring that its research remains at the vanguard of science and engineering. EPA’s ORD facilitates the advancement of interdisciplinary and evolving research through its four research centers and six national research programs (see Box 1-1). Each of the national research programs periodically formulates a Strategic Research Action Plan (StRAP) to outline a multiyear research agenda (EPA, 2023b). Collectively, these StRAPs serve as the foundation for EPA’s research programs, aligning their efforts with the statutory requirements of the agency and the objectives delineated in both EPA’s agencywide strategic plan and ORD’s strategic plan. The StRAPs guide an ambitious research portfolio aimed at delivering scientific and engineering solutions to meet the agency’s present and future goals.
Most EPA employees are hired under Title 5 of the U.S. Code, which is the traditional civil service appointing authority that governs various aspects of the hiring process, such as classification of staffing positions and compensation. Title 42 of the U.S. Code provides EPA with a more flexible hiring mechanism; it can be used when the nature of the work or the character of an individual’s services render customary employing methods impracticable or less effective, or when a scientist would be reluctant to leave their current position because of an inability to meet individual salary needs under other personnel systems.
Under Title 42, ORD has limited authority to appoint highly qualified scientists and engineers with competitive salaries, in some cases at a pay scale outside civil service ranges in Title 5, with the intent of enhancing ORD’s research capability in addressing the nation’s most pressing environmental challenges.1 As of June 2023, Title 42 hires comprised 2.6 percent of ORD’s workforce.2
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1 The Public Health and Welfare (2021), 42 U.S.C. § 209.
2 EPA/ORD presentation to the committee, June 22, 2023.
BOX 1-1
ORD’s National Research Programs and Centers
The Office of Research and Development (ORD) of the Environmental Protection Agency (EPA) uses its Title 42 authority to support emerging fields of science and engineering that hold significant potential to influence future EPA operations in the pursuit of human health and environmental protection. These areas include virology, synthetic biology, computational sciences, toxicology, climate change, environmental justice, and engineering, among others. While this list of research areas is not exhaustive, it underscores the importance of maintaining a diverse and dynamic scientific workforce to foster innovation and creativity.
The Air and Energy Research Program examines the interplay between air pollution, climate change, and the energy sector to develop approaches for improving air quality and taking action on climate change.
The Chemical Safety for Sustainability Research Program provides decision-support tools to improve the safe production, use, and disposal of chemicals and to advance ways to evaluate chemicals, conduct risk management, and prioritize time-critical research.
The Homeland Security Research Program advances EPA’s ability to carry out its homeland security responsibilities, including protecting and restoring drinking water supplies and infrastructure and helping communities become more resilient to acts of terrorism that might involve chemical, biological, or radiological weapons, and to become more resilient to natural disasters.
The Health and Environmental Risk Assessment Research Program focuses on advancing an understanding of the effects of pollutant exposures on key biological, chemical, and physical processes that affect human health and the environment.
The Safe and Sustainable Water Resources Research Program provides science and technologies to maintain drinking water resources and systems, as well as to protect the chemical, physical, and biological integrity of the nation’s waters.
The Sustainable and Healthy Communities Research Program provides knowledge, data, and tools to help communities become more sustainable and meet current needs in ways that are economically viable, socially just, and beneficial to human health, without compromising the ability of future generations to meet their needs.
The Center for Environmental Measurement and Modeling develops methods for modeling and measuring contaminants in the environment; such methods are needed to implement statutory requirements.
The Center for Computational Toxicology and Exposure conducts research to rapidly evaluate health and ecological risks due to environmental chemical exposures.
The Center for Public Health and Environmental Assessment develops health and environmental assessments to support EPA decisions.
The Center for Environmental Solutions and Emergency Response conducts research to improve decision-making by EPA and other agencies when faced with challenging environmental problems in the built environment.
SOURCE: NASEM (2023).
EPA’s Title 42 hiring authority is independent of traditional civil service appointments governed by federal statutes and corresponding regulations in Title 5 of the U.S. Code. Appointment procedures under Title 42 provide EPA with hiring flexibility to establish internal policies, guidelines, and appointment procedures in areas such as establishing staffing positions, qualifications, classification, and compensation. The implementation of Title 42 serves a specific purpose—facilitating the recruitment of experienced and talented scientists for renewable appointments spanning four professional categories (see Table 1-1). Categories A and B fall under 42 U.S.C. § 209(g), a designation for fellowships, while Categories C and D are hired through 42 U.S.C. § 209(f), which is used to hire special consultants (EPA, 2023c, d). The categorization is contingent upon the scientist or engineer’s role, professional stature, and impact and recognition within their fields.
Scientists and engineers employed under Title 42 play a pivotal role in addressing the agency’s current and high-priority research needs. Critical positions under Title 42 are identified based on various criteria. These include the need for cutting-edge scientific or engineering knowledge, anticipation of shifts in research focus, the necessity for salaries exceeding Title 5 limits, or situations where Title 5 hiring proves impractical. The responsibility for Title 42 hires lies with ORD’s assistant administrator or a designated representative. The assistant administrator oversees various critical aspects, including position allocation, evaluation of applicant qualifications, compensation determination, selection approval, and decisions regarding the renewal of appointments. Additionally, the assistant administrator holds authority over personnel actions, encompassing reassignments, realignments, details, awards, bonuses, and pay adjustments.
Other mechanisms for EPA to hire senior candidates include Senior Executive Service positions and Scientific or Professional positions; however, the Title 42 program is the only executive hiring mechanism to focus on purely science research and leadership (EPA, 2023d).
TABLE 1-1 EPA’s Title 42 Appointment Categories
| Category | 42 U.S.C. § 209(g) | 42 U.S.C. § 209(f) | Appointment Type | Role |
|---|---|---|---|---|
| A | ✓ | Staff Scientist | Serves as an independent researcher, team member, or team leader. | |
| B | ✓ | Senior Scientist | Serves as lead researcher, project leader, or team leader and has demonstrated outstanding leadership in conducting high-level research studies, regulatory or product reviews, investigations, or experimentations in a branch of natural science, applied science, biomedical science, or a related scientific field. | |
| C | ✓ | Science Leader | Manages or supervises high-level research studies, regulatory or product reviews, investigations, or experimentations and provides scientific and technical leadership and direction to the organization by planning, managing, and evaluating a comprehensive research program. | |
| D | ✓ | Senior Scientific Advisor | Provides high-level advice and assistance to the Office of Research and Development on the scientific policy and scientific management needed to operate a highly competitive, unique, or rapidly changing scientific program to establish comprehensive research programs. |
NOTE: EPA = Environmental Protection Agency.
SOURCE: EPA (2022).
Prior to EPA’s adoption of the authority, Title 42 has been the cornerstone for scientific leadership in other federal agencies, such as the National Institutes of Health (NIH), Centers for Disease Control and Prevention (CDC), and U.S. Food and Drug Administration (FDA). See Appendix G for further information on the use of the authority in the U.S. Department of Health and Human Services (HHS). Unlike these agencies, however, EPA does not have permanent hiring authority under Title 42, meaning the program requires reauthorization every 5 years.
In the 2022 Consolidated Appropriations Act, Congress expanded EPA’s Title 42 to employ up to 75 persons in ORD and 25 persons in the Office of Chemical Safety and Pollution Prevention (OCSPP) at any one time during each of fiscal years 2022 through 2025 (see Figure 1-1).3 In addition, Congress required EPA to enter into an agreement with the National Academies of Sciences, Engineering, and Medicine to conduct a study on:
….the Agency’s use of Title 42 special hiring authority over the last ten years and how Title 42 hires have uniquely contributed to the Agency’s mission. The study should also consider what controls the Agency has in place to ensure hiring practices are consistent, whether the Agency is using the authority to hire scientists that are in the highest priority fields, and what improvements the Agency can make to better manage its special hiring authority.4
At the time the Title 42 study agreement was being developed, the National Academies Committee on Anticipatory Research for EPA’s Research and Development Enterprise to Inform Future Environmental Protection (also referred to as the Futures Committee) was carrying out a study at the request of ORD to recommend how it might incorporate emerging science and systems thinking into its research planning.5 Because ORD views its Title 42 hiring authority as playing an important role in allowing it to anticipate and respond to emerging environmental challenges, the agreement for the congressionally requested study of Title 42 was established as a supplemental activity of the Futures Committee. Subsequently, the National Academies formed the Committee on Review of EPA’s Use of Title 42 Special Hiring Authority, which comprises several members of the Futures Committee as well as other individuals to provide the appropriate expertise for preparing this Title 42 report. Biosketches of the committee members are presented in Appendix A.
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3 Consolidated Appropriations Act of 2022, H.R. 2471, 117th Cong.
4 U.S. Congress. Congressional Record. 117th Cong., 2nd sess., 2022. Vol. 168, No. 42, Book IV, H2493.
5 See https://www.nationalacademies.org/our-work/anticipatory-research-for-epas-research-and-development-enterprise-to-inform-future-environmental-protection-the-road-ahead (accessed November 1, 2023).
NOTES: EPA = Environmental Protection Agency; ORD = Office of Research and Development.
STATEMENT OF TASK
Based upon the request from Congress, the committee was asked to review ORD’s use of the Title 42 hiring authority during the past decade, as well as its current program. In addition, the committee was asked to recommend how ORD’s use of the Title 42 program could be improved in the future. Specifically, the committee was asked to evaluate the efficiency and effectiveness of the program, and the overall quality and impact of the scientific work of past and current Title 42 appointees. Key considerations include EPA’s Title 42 Operations Manual; the consistency of its hiring practices; the competitiveness of its salaries; its talent acquisition outreach strategies; and the integration of its diversity, equity, inclusion, and accessibility plans.
The committee was also asked to consider the potential impacts of EPA being granted permanent Title 42 authority and to identify best practices of Title 42 programs in other federal agencies that might be adopted by EPA. In addition to ORD’s use of Title 42 authority, the committee was asked to provide advice regarding the future use of Title 42 authority by EPA’s OCSPP. The committee’s statement of task is provided verbatim in Box 1-2.
It is important to note that the statement of task is focused on EPA’s Title 42 program, which covers a relatively small, but important, portion of the wide range of work functions carried out by the scientists and engineers employed by EPA (see Box 1-3). The committee has not been asked, and therefore did not review, the overall hiring practices at EPA or the research and assessment activities performed across all of ORD or other parts of the agency.
PREVIOUS REVIEWS OF THE TITLE 42 PROGRAM
Since its adoption in 2006, EPA’s Title 42 program has been reviewed by EPA’s Office of Inspector General (OIG), the National Academies, and the U.S. Government Accountability Office (GAO). The last comprehensive scientific review of EPA’s Title 42 program was issued in 2010 by the National Research Council (NRC), which found that EPA had been implementing the program appropriately and that Title 42 employees have had a favorable effect on the agency’s research (NRC, 2010). The report recognized EPA’s Title 42 program as a mechanism for hiring highly specialized researchers in diverse fields and concluded that there was no other available authority that serves the function of Title 42. The report recommended that permanent Title 42 authority be granted to EPA and that its authority be expanded to define the number of Title 42 positions on the basis of the agency’s programmatic needs and available budget, aligning with congressionally approved hiring authorities in other federal science organizations. A verbatim statement of the findings and recommendations presented at the conclusion of the NRC’s 2010 report is provided in Appendix C of this report.
BOX 1-2
Statement of Task
[The committee] will evaluate EPA’s use of its Title 42 special hiring authority. On the basis of available information, theory, and experience, the committee will review the utilization of the Title 42 Hiring Authority by EPA’s Office of Research and Development (ORD) during the past decade, its current program, and how utilization of the Title 42 program could be improved in the future. In carrying out its study, the committee will evaluate:
- Efficiency and effectiveness of EPA’s Title 42 program, including consideration of:
- Policies and procedures of EPA’s Title 42 operations manual,
- How consistently the hiring practices in the manual are followed,
- Salary competitiveness,
- Implementation of Diversity, Equity, Inclusion, and Accessibility plans,
- Networks and outreach for talent search and candidate recruitment,
- Number of job applicants and number accepting job offers, and
- Hiring in priority fields
- Overall quality and impact of the scientific work of past and current Title 42 appointees, taken as a whole.
- Best practices of Title 42 programs in other federal agencies that might be adopted by EPA.
- Potential impacts of EPA being granted permanent Title 42 authority.
The committee will recommend changes to the Title 42 program of EPA ORD that may increase the efficiency and effectiveness of the program and increase the quality and impact of Title 42 appointees. The committee also will provide advice regarding the future of Title 42 authority by EPA’s Office of Chemical Safety and Pollution and Prevention.
The committee will consider past reports and analyses by NASEM and other organizations, presentations and documentation provided by EPA (e.g., program guidance and policy documents), and EPA’s mission and its current initiatives.
In 2012, GAO issued a report in 2012 to assess the use of Title 42 by HHS and EPA. GAO (2012) found that EPA generally followed its Title 42 policies and has improved its appointment and compensation practices. As part of its efforts to improve post appointment ethics oversight, the report recommended that EPA develop and document a systematic approach for ensuring Title 42 employees are compliant with ethics requirements after appointment. The report offers insights into the role of Title 42 hiring authorities in the recruitment and retention of specialized personnel.
BOX 1-3
Overview of Scientific and Technical Work at EPA
The Environmental Protection Agency’s (EPA’s) Office of Research and Development (ORD) conducts research that provides the agency with scientific knowledge and technical information to support decision-making for safeguarding human health and ecosystems from environmental pollutants. ORD research capabilities include monitoring, computer modeling, analysis, and development of methods and tools for addressing the effects of chemicals and other stressors on human health, environmental quality (air, water, and land), and ecology. Expertise of ORD personnel covers a wide variety of disciplines, including biological sciences, physical sciences, engineering, social sciences, and health sciences.
ORD’s six research programs identify pressing environmental research needs with input from EPA offices, partners outside the agency, and stakeholders. ORD’s four centers conduct the needed research over time frames ranging from longer-term, forward-looking research to nearer-term research for informing EPA decision-making and responding to emergency situations.
In fiscal year 2021, ORD had a ceiling of 1,515 full-time-equivalent employees located in 12 labs at various U.S. locations and at EPA headquarters in Washington, DC. Of those ORD staff, 68 percent were directly engaged in conducting research and 9 percent provided science-support activities that require a science background, such as quality assurance management and peer-review coordination. The other 23 percent of ORD staff were involved in administration and operations.
In parts of EPA outside of ORD, personnel conduct science-related activities in the agency’s regulatory program offices and regional offices in direct response to particular regulatory and programmatic needs. They apply and interpret science for complex decisions and therefore need to understand the latest scientific techniques and approaches. For example, in the Office of Chemical Safety and Pollution Prevention, staff trained in biology, chemistry, ecology, engineering, toxicology, and other disciplines conduct analyses aimed at understanding and mitigating risks posed to humans and ecosystems by pesticides and toxic chemicals.
At EPA’s 10 regional offices, personnel provide scientific and technical information in direct support of pollution monitoring and control, enforcement, and cleanup. They also interact with relevant agencies in all 50 states and in territorial and tribal jurisdictions.
SOURCE: Chris Robbins (EPA/ORD) recorded presentation to the National Academies Futures Committee, EPA (2023a).
In 2015, EPA’s OIG audited the agency’s management of its Title 42 hiring authority. The OIG (2015) report observed that the law, regulations, and EPA’s Title 42 Operations Manual at that time did not require the agency to justify using the Title 42 hiring authority to fill a position, nor did they require the agency to demonstrate that the need cannot be met by using Title 5 or another hiring authority. Even so, the report called upon EPA to do more to justify its use of Title 42,
especially when filling positions previously held by Title 5 employees. Despite these concerns, the report found that EPA maintained a stringent hiring process for Title 42 appointees, which was instrumental in enabling significant scientific research endeavors.
In 2023, GAO reviewed EPA’s implementation of its chemical review responsibilities under the Toxic Substances Control Act, which is managed within OCSPP.6 The GAO report noted that OCSPP had not yet made any hires under its Title 42 authority provided by the Consolidated Appropriations Act of 2022 from fiscal years 2022 through 2025 (GAO, 2023). OCSPP indicated it was in the process of completing required administrative steps (EPA, 2023e). Given the early stage of OCSPP’s Title 42 program, the committee focused its review on ORD’s use of EPA’s Title 42 hiring authority. However, the committee’s advice on the future of Title 42 included consideration of OCSPP and other parts of EPA, as well as ORD.
THE COMMITTEE’S APPROACH
The following components from the statement of task guided the committee’s holistic assessment of available information: assess the program’s operations manual; assess the program’s quality and the impact of its past and current scientific work; and assess the program’s policies and procedures in comparison with those of other federal agencies.
The committee heard from ORD in two information-gathering sessions. During the first session, held on June 22, 2023, ORD leadership provided an overview of its previous and current uses of Title 42 and described impacts that Title 42 hires have had on ORD’s capability to address priority science areas within EPA. EPA’s website describes the kinds of work being carried out within the agency by various Title 42 appointees.7 The second information-gathering session, held on September 26, 2023, focused on ORD’s Title 42 implementation procedures and future plans, with an emphasis on recruiting and hiring mechanisms to fill priority science and engineering positions. Agendas for the two sessions are presented in Appendix B. To assess the program’s policies and procedures, the committee reviewed the manual, analyzed programmatic data provided by ORD, and assessed information discussed in the sessions mentioned above. The committee also compared EPA’s operations manual with published mechanisms and frameworks used to evaluate federal employees, and operations manuals from other federal agencies that use the authority.
To analyze the program’s quality and impact of the scientific work, the committee considered data provided by ORD representing the current number of Title 42 candidates, the position title, and distribution of the appointees organizationally within ORD. Additionally, the committee considered ORD’s StRAPs for characterizing the scientific domains of each Title 42 position. The committee
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6 Toxic Substances Control Act of 1976, 15 U.S.C. §§ 2601 et seq.
7 See https://www.epa.gov/research/epas-title-42-researchers (accessed February 9, 2024).
also considered NRC (2010), other previous National Academies reports, EPA’s Integrated Science Assessments, information on EPA’s website, and case studies that described the impact and scientific prioritizations of Title 42 employees.
To compare the best practices of Title 42 programs in other federal agencies that could be adopted by EPA, the committee considered the established protocol and written operations manuals from HHS agencies, including NIH, CDC, and FDA; conducted an informational interview with a former Title 42 candidate from CDC; and read reports from EPA, OIG, and GAO, as described above. Finally, the committee assessed the current and prospective scientific research landscape, emphasizing specific scientific disciplines essential for advancing environmental knowledge and capacity (NASEM, 2023). Then the committee considered how the Title 42 program contributes to a growing scientific enterprise in a distinctive way.
To provide advice for future improvements of EPA’s Title 42 program, the committee holistically reviewed previous assessments and current Title 42 data and other materials provided by EPA and other federal agencies. Additionally, the committee considered the current implementation and impact of EPA’s Title 42 program and the prospective scientific research landscape to develop guidance regarding EPA being granted permanent Title 42 authority and the potential expansion of the program. As the committee’s statement of task called for consideration of the overall quality and impact of the scientific work of Title 42 appointees taken as a whole, personal data (e.g., race, ethnicity, gender, age, citizenship) were not made available to the committee. Lastly, in making the findings and recommendations throughout the report, the committee often relied on its collective judgment, expertise, and experience.
The committee contacted the American Federation of Government Employees, National Association of Independent Labor, U.S. Federal Labor Relations Authority, Science and Technology Policy Institute of the Institute for Defense Analyses, and the U.S. Office of Personnel Management and established that no materials relevant to this study were available.
ORGANIZATION OF THIS REPORT
Chapter 2 discusses ORD’s current policies and procedures for identifying and fulfilling hiring needs under Title 42. Chapter 3 considers the expertise and focus areas of current and planned Title 42 positions within the agency, with a specific emphasis on priority-setting and programmatic impact. Chapter 4 discusses best practices and other advice for the future improvement of EPA’s use of Title 42 authority.
Appendix A contains biographical information about the committee members. Appendix B provides information about the committee’s information-gathering sessions. Appendixes C–G provide additional details about the methods and results of the committee’s work.
