Summary

A scientific workforce with cutting-edge skills is critical for the U.S. Environmental Protection Agency’s (EPA’s) ability to carry out its mission of protecting human health and the environment. EPA’s Office of Research and Development (ORD) provides the agency with core research capabilities for identifying environmental hazards, evaluating risks to public health and ecosystems, and formulating effective methods for pollution control and prevention. To address the persistent difficulty the agency has faced in recruiting, hiring, and retaining premier scientists and engineers, in 2006, EPA sought the ability to directly recruit world-renowned scientists and engineers in academia, private industry, and other government agencies under Title 42, Section 209, of the U.S. Code.

Title 42 authorizes federal agencies to appropriately appoint highly qualified scientists and engineers outside of standard civil service positions. Candidates can be designated under either 42 U.S.C. § 209(g) for fellowships, encompassing staff or senior scientist positions, or 42 U.S.C. § 209(f) for the hiring of special consultants in science leader or senior scientific advisor roles. Staff and senior scientist positions involve technical responsibilities, while science leader and senior scientific advisor positions can be conceptualized as leadership and management roles.

In fiscal year (FY) 2006, Congress granted Title 42 authority to EPA for 5 years and allowed ORD to appoint no more than five persons under this authority at any one time. In subsequent years, Congress continued to reauthorize EPA’s Title 42 authority in 5-year increments and increased the maximum number of appointments. In 2022, Congress expanded EPA’s Title 42 authority 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 FYs 2022 through 2025.

A National Research Council report issued in 2010 reviewed the implementation of EPA’s Title 42 program during its first 4 years. The report found that EPA had appropriately implemented the program and Title 42 employees have had a favorable effect on the agency’s research. 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.

EPA has updated the program’s policies and procedures, as the agency’s scientific and strategic priorities have evolved. In addition, the number of appointees allowed at any one time has increased. Currently, EPA’s Title 42 program accounts for less than 3 percent of ORD’s workforce. To evaluate the subsequent developments of the program, Congress requested that the National Academies of Sciences, Engineering, and Medicine form a committee to review EPA’s use of the Title 42 hiring authority both during the past decade and currently, and to review how its use of the program could be improved in the future. This report

from the Committee on Review of EPA’s Use of Title 42 Special Hiring Authority was prepared in response to Congress’s request.

In carrying out its review, the committee was asked to evaluate the efficiency and effectiveness of ORD’s program, the overall quality and impact of the scientific work of past and current Title 42 appointees, best practices of Title 42 programs in other federal agencies that might be adopted by EPA, and potential impacts of EPA being granted permanent Title 42 authority. In providing advice regarding ORD’s future use of Title 42 authority, the committee was also asked to consider the future use of Title 42 authority by EPA’s OCSPP. The committee’s approach is detailed in Box S-1.

POLICIES AND PROCEDURES OF EPA’S TITLE 42 OPERATIONS MANUAL

In fostering scientific and workforce efficiency and effectiveness, EPA has created an operations manual that details an extensive set of policies and practices to guide the implementation of the agency’s Title 42 authority. The manual encompasses the full range of Title 42 procedures, such as the qualification of a

position as a Title 42 hire, hiring selections, and compensation packages. The committee compared the operations manual’s policies with similar procedures of other federal agencies that have acquired Title 42 hiring authority, such as the agencies under the U.S. Department of Health and Human Services. The committee also recognized and appreciated the evolution of EPA’s FY 2022 operations manual when compared with the first manual, published in FY 2006. To further inform its evaluation, the committee reviewed data and assessments from other federal programmatic reviews.

The committee found that EPA’s operations manual provides best practices for the recruitment and selection of candidates for Title 42 positions, reflecting the U.S. Office of Personnel Management’s Senior Executive Service framework of Executive Core Qualifications, and determined that the manual has been used effectively. The manual enhances EPA’s ability to recruit highly qualified experts, streamline the hiring process, and promote diversity and inclusion among its scientific leadership. When considering EPA’s ability to leverage Title 42 to hire in competitive fields, the committee found that a competitive hiring approach can enhance an agency’s ability to create a diverse, expansive, and competitive hiring pool. Competitive hiring is a strategy that involves the use of active advertising during the hiring process. The committee concluded that, generally, Title 42 positions need to be hired competitively to create a specialized and expansive candidate pool, understanding that certain scenarios might call for noncompetitive approaches.

Additional outreach during the recruitment process can be achieved by developing search committees; this approach is similar to the National Institute of Environmental Health Sciences’s (NIEHS’s) outreach procedure outlined in the National Institutes of Health (NIH) operations manual for Title 42 candidates. The search committee can provide advice on how positions can be advertised to increase outreach and diversity among the candidates who apply for each position. When determining the scientific priorities for Title 42 positions, the committee determined that EPA’s Strategic Action Research Plans could be used to guide the Title 42 strategic hiring plan. Keeping in mind that a portion of the Title 42 positions need to be reserved for responding to immediate scientific needs, applied research areas outlined through the agency’s strategic plans can ensure the agency’s ability to hire in high-priority fields.

Finding 2-2: EPA’s Title 42 Operations Manual and hiring procedures would benefit from revisions focused on integrating the overall priorities for Title 42 positions into ORD’s evolving research strategic planning.¹

___________________

¹ The findings and recommendations in this summary are labeled according to the order of the corresponding findings and recommendations in the respective chapters of the main report.

Recommendation 4-3: The Environmental Protection Agency should use the process for Strategic Action Research Plans (StRAPs) to develop a 5-year strategic plan for Title 42 hiring across its Office of Research and Development (ORD). It should identify hiring categories, duration of appointments, and whether positions are renewable. Consistent with recommendations of the 2023 report by the National Academies of Sciences, Engineering, and Medicine titled Transforming EPA Science to Meet Today’s and Tomorrow’s Challenges, strategic planning for Title 42 hiring should include horizon scanning or foresight planning that is conducted every 4 years, in conjunction with updating the StRAPs. ORD national program directors and center directors should provide input on an annual basis regarding how position allocations in the Title 42 program could be modified to better support one or more of the StRAP deliverables and to reflect new directions and priorities.

Recommendation 4-8: Regular overall Title 42 program evaluation and performance measurement are critical for informing internal decisions and communicating externally about program efficiency, effectiveness, and equity. The Environmental Protection Agency (EPA) should arrange for a review of its Title 42 program every 5 years by a third party (e.g., EPA’s Office of Research and Development’s Board of Scientific Counselors).

Finding 2-1: Overall, EPA has implemented its Title 42 program in a well-organized and effective manner, laying out and following its operations manual and following an approach that appears to ensure that ORD research centers and national research programs can respond to rapidly emerging technical needs. The focus on cutting-edge technical positions is a strong value of the Title 42 program.

Recommendation 4-5: The Environmental Protection Agency should define the decision rules for competitive versus noncompetitive hiring. Noncompetitive hiring should be used sparingly on a strategic basis, as it may be antithetical to a fair and unbiased hiring process and may undermine equitable hiring. Most, if not all, of the positions should be competitive.

TITLE 42 FOR SCIENTIFIC CAPACITY BUILDING

To address current and forthcoming complex challenges in environmental protection, it is crucial for EPA to continually advance its engineering and scientific capabilities. Growing challenges—such as those stemming from pervasive wildfires, climate change, COVID-19, and hazardous chemical spills—lead to rapidly changing demands for a broader array of capabilities within EPA’s scientific workforce. Title 42 authority has been important in providing ORD with an

appropriate pathway for onboarding personnel with essential applied and basic research capabilities for meeting complex environmental challenges. The National Academies (2023) has identified critical areas for research and capacity development within ORD, including biotechnology; artificial intelligence; big data management; novel techniques for environmental exposure monitoring; social and behavioral sciences; and the application of systems thinking for understanding complex interactions among environmental, social, and economic systems. All these areas require novel approaches and advanced methods to achieve workable solutions to the complex regulatory issues confronting the agency.

Through its evaluation of the programmatic makeup, organizational distribution, impact on fulfilling EPA’s agency mission, and breadth of scientific representation, the committee determined that the Title 42 program has achieved its intended purposes of creating a critical mass of world-class scientists and engineers in fields identified by the agency as highest priority. Furthermore, the committee found that Title 42 hiring authority is important for strengthening ORD’s ability to meet the needs for advanced science and technical assistance throughout EPA and among the states. The committee suggests that the agency’s use of performance metrics for assessing programmatic success would help ensure that EPA’s Title 42 program continues to meet present and future needs. Describing success outcomes can enable the agency to determine the impacts of the Title 42 program on a scientific field and showcase its application to EPA regulatory needs.

Finding 3-4: Title 42 scientists are working in all EPA priority areas, conducting research, developing new tools, and providing technical assistance across the agency and to the states.

Finding 3-2: The future placement of the planned Title 42 positions throughout the National Research Programs will enhance the capacity of ORD to develop state-of-the-art research and tools, addressing pressing environmental and health research issues and further solidifying its role in strengthening EPA’s scientific foundation.

Recommendation 4-9: The Environmental Protection Agency should periodically arrange for an evaluation of program success that can be used internally to inform decisions about modifying the Title 42 program, if necessary, to meet present and future needs. The evaluation also can be used to respond to questions externally about the value of the program and the need for its continuation and expansion.

BEST PRACTICES OF TITLE 42 PROGRAMS IN OTHER FEDERAL AGENCIES

Federal agencies, such as NIH, the Centers for Disease Control and Prevention, and the U.S. Food and Drug Administration, have obtained permanent Title 42 authority and outlined effective and efficient procedures and policies through

their operations manuals. Among these agencies, NIH has the most expansive Title 42 program, featuring policies and procedures comparable to those of EPA. Within NIH, the agency whose research function is most similar to ORD’s mission for providing the foundation to safeguard human health and ecosystems is NIEHS, which conducts research to understand how the environment affects people in order to promote healthier lives. The committee compared NIEHS and ORD on the basis of their Title 42 programs’ qualities, procedures, and policies (Chapter 4). Specific practices NIEHS has implemented that would also be beneficial for EPA include:

• Research fellow positions, which provide opportunities for researchers at a postdoctoral level.
• A salary cap increase to $350,000, with the total compensation allowed at $400,000.
• The use of search committees to identify candidates for each Title 42 position.
• Periodic evaluations of the Title 42 program by a board of extramural and intramural scientists.
• No preestablished limit to the number of Title 42 positions.
• The authorization of a permanent Title 42 program.

Finding 2-1b: NIH’s use of its Title 42 authority to create temporary (i.e., time-limited, nonrenewable) positions enables it to fill critical science gaps with international postdoctoral fellows (who otherwise cannot be hired). A similar use of EPA’s authority may help fill key technical gaps.

Finding 2-3: The EPA Title 42 program has not revised its salary caps since the program’s inception. As the “buying power” of the salaries offered by the program, especially for recruiting key leaders, has decreased significantly, the current salary cap is in urgent need of thorough review and adjustment.

The Environmental Protection Agency should adopt best practices modeled in other federal Title 42 programs, including:

• Recommendation 4-7: Search committees for available positions to facilitate broad and open recruitment, promote equity and transparency in the process, evaluate applicants’ credentials, and recommend the most qualified applicants.
• Recommendation 4-6: The adoption of the salary cap of $350,000, as used by the National Institutes of Health. A higher salary cap may be needed for engineering and data science professionals, if warranted by recent market analyses.

• Recommendation 4-4: The use of Title 42 provisions for hiring postdoctoral and young professionals, who often have substantial expertise in cutting-edge science and method implementation. In contrast to standard requirements of the federal government’s General Schedule, Title 42 authority enables greater flexibility in hiring non-U.S. citizens.

POTENTIAL IMPACTS OF PERMANENT TITLE 42 AUTHORITY FOR EPA

The committee found that Title 42 authority plays a pivotal role in bolstering ORD’s readiness to anticipate and respond to emerging environmental concerns by enabling access to pertinent expertise across multiple scientific disciplines. The Title 42 program provides a flexible hiring mechanism, allowing EPA to competitively secure and retain critical scientific talent needed to address pressing applied and basic research needs. In addition to facilitating ORD’s readiness to anticipate and respond to emerging environmental concerns, Title 42 authority allows the agency to quickly access proficiency in evolving disciplines and to attract national and internationally recognized leaders in science and engineering fields relevant to EPA’s work. Such hires have been able to substantially enhance EPA’s collaborations with researchers in academia and industry, thereby multiplying their effectiveness even further.

Looking ahead, EPA faces escalating challenges in fulfilling its mandate to safeguard human health and the environment from risks associated with increasing exposures to climate change–related, chemical, and nonchemical stressors. To enhance its scientific workforce and maintain a position at the forefront of evolving scientific knowledge, the committee concluded that EPA would benefit from permanent Title 42 authority. Obtaining this authority will reduce concerns of appointments terminating or not being renewed. Along with permanency, expanding the number of the allotted Title 42 positions will enhance EPA’s ability to proactively research emerging scientific challenges.

OCSPP was granted Title 42 authority in FY 2022 but has yet to onboard appointees because their operations manual is in development. Even though OCSPP is in its nascent stage, the committee believes that the Title 42 program can strengthen EPA’s science to support high-priority regulatory programs. The impact can be expanded to other program and regional offices within EPA, supporting science-based rulemaking across the entire agency.

Given the rapidly evolving nature of regulatory challenges for protection of human health and the environment, the agency is compelled to remain at the forefront of scientific advancements, proactively addressing imminent threats and emerging future complexities. This necessitates the expansion and permanency of high-level leadership for cutting-edge inter- and multidisciplinary research initiatives within EPA to provide the scientific underpinnings for regulatory action.

Finding 3-1: Although only 2.6 percent of ORD’s current workforce are Title 42 hires, Title 42 authority has enabled the hiring of strong scientific leadership, advanced innovation, and improved the scientific capability and capacity to support EPA’s mission.

Finding 3-5: Continued support and expansion of EPA’s Title 42 program is essential to ensuring that the agency has the scientific capability to implement its statutory mandates, address today’s and tomorrow’s environmental challenges, and provide global leadership in innovative solutions for the future.

Recommendation 4-1: The Environmental Protection Agency (EPA) has used its limited Title 42 authority effectively since it was first provided by Congress in 2006 and renewed every 5 years thereafter. As it has for other federal agencies, Congress should grant EPA permanent Title 42 authority.

CONCLUDING REMARKS

Advances in research and development at EPA have paved the way for scientific discovery, technological progress, informed decision-making, and the development of effective policies, resulting in substantial improvements in chemicals management to protect both the environment and human health. Behind these advancements are a dedicated workforce of leaders, experts, and innovators. Moreover, as EPA confronts mounting challenges in fulfilling its mandate to protect human health and the environment from the escalating risks posed by climate-related and chemical stressors, as well as other emerging environmental challenges, access to an expert workforce remains imperative to enhancing the agency’s capacity for science-based regulations.

For the past 18 years, EPA’s Title 42 program has supplied the agency with highly specialized personnel for carrying out evolving and emerging research paradigms needed to address the agency’s high-priority challenges. The committee acknowledges the substantial impact of EPA’s workforce as a whole in achieving these scientific priorities and discoveries and recognizes the contributions of the Title 42 program to fostering innovation and moving research forward at a faster pace.

The committee envisions that the future use, expansion, and ultimate permanency of the Title 42 program will play a critical role in helping EPA effectively address the nation’s emerging, evolving, and established environmental research priorities.