[Federal Register: January 16, 2009 (Volume 74, Number 11)]
[Rules and Regulations]
[Page 2757-2770]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16ja09-1]
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Rules and Regulations
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[[Page 2757]]
DEPARTMENT OF DEFENSE
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 9901
RIN 3206-AL75
National Security Personnel System
AGENCY: Department of Defense; Office of Personnel Management.
ACTION: Final rule.
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SUMMARY: The Department of Defense (DoD) and the Office of Personnel
Management (OPM) are issuing the final regulations adding subpart E,
Staffing and Employment, to the National Security Personnel System
(NSPS) regulations published in the Federal Register on September 26,
2008. NSPS is a human resources management system for DoD, authorized
by the National Defense Authorization Act for Fiscal Year 2004, amended
by the National Defense Authorization Act for Fiscal Year 2008 and the
Duncan Hunter National Defense Authorization Act for Fiscal Year 2009.
These final regulations govern staffing and employment under NSPS.
DATES: This rule is effective March 17, 2009.
FOR FURTHER INFORMATION CONTACT: For DoD, Bradley B. Bunn, (703) 696-
5604; for OPM, Charles D. Grimes III, (202) 606-8079.
SUPPLEMENTARY INFORMATION: On December 3, 2008, the Department of
Defense (DoD or ``the Department'') and the Office of Personnel
Management (OPM) published in the Federal Register at 73 FR 73606 a
proposal to add staffing and employment provisions to the National
Security Personnel System (NSPS or ``the System''), a human resources
(HR) management system for DoD under 5 U.S.C. 9902, as enacted by
section 1101 of the National Defense Authorization Act for Fiscal Year
2004 (Pub. L. 108-136, November 24, 2003), and amended by section 1106
of the National Defense Authorization Act for Fiscal Year 2008 (Pub. L.
110-181, January 28, 2008), and by section 1106 of the Duncan Hunter
National Defense Authorization Act for Fiscal Year 2009 (Pub. L. 110-
417, October 14, 2008).
I. Staffing and Employment--5 CFR 9901 Subpart E
This subpart provides DoD with authority, pursuant to 5 U.S.C.
9902(i), to waive or modify certain provisions of title 5 U.S.C. and
CFR pertaining to methods for recruitment for, and appointments to,
NSPS positions and the methods for the assignment, reassignment,
detail, transfer, and promotion of employees into and within NSPS. This
subpart revises the subpart E found in the NSPS regulations published
November 1, 2005 at 70 FR 66116. The revisions reflect changes in NSPS
authorized by amendments to 5 U.S.C. 9902 by the National Defense
Authorization Act for Fiscal Year 2008 (Pub. L. 110-181) as further
amended by the Duncan Hunter National Defense Authorization Act for
Fiscal Year 2009 (Pub. L. 110-417); provide specificity to the
regulations based on existing implementation; reflect changes in
subparts A through D of the regulations published on September 26,
2008; and make technical changes and improvements.
In order to meet its critical mission requirements worldwide and
respond to a dynamic national security environment, the Department
needs flexibility to attract, recruit, assign and retain a high quality
workforce. The current Federal hiring system does not have the
flexibility needed by DOD to meet all of its mission requirements.
Subpart E of the final regulations preserves merit principles and
veterans' preference requirements, while streamlining hiring and
placement processes and providing DoD with flexible hiring tools to
respond effectively to continuing mission changes and priorities and
evolving labor markets. The public comment period ended on January 2,
2009. The following is a discussion of the comments received.
II. Response to Public Comments
A. Summary
The proposed rule was published in the Federal Register on December
3, 2008. In response to the proposed rule, the Department received 42
submissions during the 30-day public comment period. General comments
fell into one of the following categories: collective bargaining and
labor relations; publication date; fairness and equity; and whether the
subpart implements too many or too few changes to staffing and
employment procedures. Comments specific to staffing and employment
fell into one of the following categories: Coverage of regulations;
appointing authorities; probationary periods; competitive examining
procedures; and internal placement. The 42 submissions included a total
of 94 comments; 60 of those comments pertain to this subpart and are
addressed below. We do not address the remaining comments because they
concern other NSPS subparts published in 73 FR 56344, or do not relate
to staffing and employment.
B. General Comments
1. Collective Bargaining and Labor Relations
Labor organizations contended that various matters should be
subject to collective bargaining under 5 U.S.C. chapter 71. As noted in
the publication of the final regulations for subparts A through D of
this part, published on September 26, 2008, collective bargaining
obligations are governed by Federal statute. DoD is committed to
fulfilling its obligation to bargain in good faith consistent with
governmentwide labor relations law under 5 U.S.C. chapter 71 and the
requirements of 5 U.S.C. 9902, as well as section 1106(b) of Public Law
110-181 and section 1106 of Public Law 110-417. However, the Department
seeks uniformity and consistency in its NSPS employment practices
through issuance of regulations.
2. Publication Date
One commenter questioned the timing of our proposed regulations,
stating that we should allow the new Administration to review NSPS
before implementing this rule. A labor organization expressed concern
that these regulations were published on
[[Page 2758]]
December 3rd, requiring anyone interested in commenting to use time
during the holidays to do so. The proposed regulations, which add
subpart E to subparts A through D of the final enabling regulations
published on September 26, 2008, are authorized by both the National
Defense Authorization Act (NDAA) for Fiscal Year 2008 and the Duncan
Hunter National Defense Authorization Act for Fiscal Year 2009, which
clarified the staffing and employment authorities originally granted
under 5 U.S.C. 9902 by Public Law 108-136. When Congress enacted NDAA
2008 in January 2008, OPM and DoD began developing these regulations,
which was eleven months prior to their December 3, 2008 publication.
However, Congress did not enact NDAA 2009 until October 14, 2008. The
Department and OPM issued the proposed subpart E regulations less than
two months after the NDAA 2009 became law. They were issued at that
time to provide a complete regulatory structure for NSPS that reflects
the most recent changes in law.
3. Fairness and Equity
Many commenters expressed concerns about the fairness and equity of
the staffing and employment features of NSPS. These concerns were
characterized by terms such as ``favoritism'' and ``cronyism'' implying
that the greater flexibility in decision-making under NSPS would result
in hiring or placement decisions on a basis other than merit.
A number of the fairness comments centered around the NSPS
competitive examining flexibilities. For example, some commenters
expressed concern regarding management's ability to limit the area of
consideration, when sufficient qualified applicants are available, to
applicants in the local commuting area and other targeted recruitment
sources, stating that these restrictions limit advancement
opportunities for qualified candidates and prevent applicants who are
willing to relocate from being considered for NSPS positions. They
feared that management would use this flexibility to narrow the field
of applicants to their favorites in order to select their ``employee of
choice.'' Two commenters pointed out that it will now be easier than
ever for military leaders to hire and promote retiring military members
who would otherwise face unemployment at the expense of faithful,
loyal, honest, and deserving civilians. Another commenter stated that
limiting the pool of qualified applicants does not make sense if the
department intends to hire the most qualified candidate for the
position. In response, we note that NSPS competitive examining
procedures require acceptance of applications from all U.S. citizens,
including current Federal employees. However, if there is a sufficient
number of qualified applicants, initial consideration may be limited to
candidates in the local commuting area and other targeted recruitment
sources. In instances where the ease of filing an application or supply
and demand forces generate a sufficient number of candidates, the
ability to narrow the pool of applicants to be considered is necessary
to streamline hiring processes. Streamlining hiring practices enables
management to quickly fill positions and help ensure that the highest
quality candidates are not lost to other employers due to length of
time between the close of a job announcement and the job offer. This
flexibility neither favors nor disfavors military members since all
qualified applicants, whether civilian or military, in the local
commuting area must be considered. Likewise, both civilian and military
outside the local commuting area would equally be excluded from
consideration. While organizations may limit the initial area of
consideration, there is no requirement to do so. Apparent in many of
the comments is the belief that the ability to narrow the area of
consideration to the local commuting area would enable management to
target ``favorite'' employees or friends or ``cronies.'' However, the
regulations provide a safeguard against misuse of the smaller area of
initial consideration. Specifically, the regulations require that, if
sufficient qualified applications are not received from the local
commuting area and other targeted recruitment sources, the area of
consideration must be expanded to include all applicants for the
vacancy. DoD will continue to comply with merit system principles and
veterans' preference when filling NSPS positions through NSPS
competitive examining procedures.
A number of fairness-related comments revolved around the
alternative promotion procedures, an NSPS internal placement
flexibility. Commenters stated that these procedures will narrow
promotion and career advancement opportunities for NSPS employees and
that their use will result in a supervisor's favorite employee or crony
being selected, ensuring that the Federal Government will turn into a
``who you know club'' that does not consider diversity or
qualifications in the selection process. One commenter observed that
absent a formal vacancy announcement, management would not be able to
ensure that all employees are made aware of the opportunity for
consideration. In other words, nothing would prevent management from
singling out one or two favorite employees for consideration. With
respect to consideration of qualifications in the selection process,
under the alternative promotion procedures, the regulations require
that employees selected meet qualification standards and either fall
into the category of highly qualified or have received the highest
level of performance rating for NSPS. While the regulations do not
require formal advertisement (e.g., posting a job on USAJOBS), Sec.
9901.516(c)(8) does require that employees be notified prior to use of
alternative promotion procedures. Some methods that may be used include
newsletters, bulletin boards, e-mail, and other forms of employee
notification. Also, using alternative promotion procedures may not
require employees to apply for positions. For example, the exceptional
performance promotion procedure requires that all employees in the area
of consideration be considered when their Level 5 rating of record is
based on performance in the same occupational series and similar
function as the vacancy being filled. Assessment boards may entail
soliciting job experience information from employees in an organization
or may simply be held in conjunction with or after the conclusion of
the performance appraisal period.
Another commenter expressed the belief that the alternative
promotion procedures are not competitive and/or do not comply with
merit system principles. They are consistent with merit system
principles and with the merit promotion requirements of 5 CFR part 335.
In fact, procedures similar to the alternative promotion procedures are
currently used by some DoD Components to fill non-NSPS positions. We
have included each of these procedures in the regulations because not
all of these flexibilities are currently authorized for use within each
DoD Component. Including them under the NSPS Merit Promotion Program
provides NSPS managers uniform and consistent access to these
flexibilities. In addition to notifying all employees that these forms
of competition may be used, each of these procedures requires analysis
of the job to be filled to identify the knowledge, skills, abilities,
and/or competencies necessary to successfully perform the duties of the
position;
[[Page 2759]]
clearance of applicable programs for displaced or surplus employees,
such as the DoD Priority Placement Program and the Reemployment
Priority List; determination that selectees meet applicable OPM or DoD
qualification standards for the positions being filled; and, selection
of candidates determined to be best qualified for the positions. The
identification, qualification, evaluation, and selection of candidates
must be made without regard to political, religious, or labor
organization affiliation or nonaffiliation, marital status, race,
color, sex, national origin, nonqualifying physical handicap, or age,
and must be based solely on job-related criteria. These alternative
promotion procedures streamline the standard vacancy announcement
process. Streamlining the process permits management to fill positions
quickly by identifying and selecting highly qualified candidates in a
timely manner.
Some commenters raised concerns about the exceptional performance
promotion procedure which permits management to promote an employee
whose most recent rating of record is Level 5 to a vacant position in
the same occupational series (or related interdisciplinary/
interoccupational series) and similar function as the position the
employee held at the time he or she received the Level 5 rating.
Commenters who objected to this procedure indicated they consider the
NSPS pay pool process to be faulty. Commenters stated that the NSPS
performance system is ``far too subjective'' and employees who perform
at the Level 4 or Level 5 will never be considered for the exceptional
performance promotion because ratings are forced down in a quota-like
manner to Level 3. Another commenter suggested that using a severely
flawed performance system's appraisals as a tool for selection
undermines EEO and merit system principles.
As described in 5 CFR part 9901, subparts C and D, the pay pool
process employs a number of checks and balances to ensure that
employees who perform similar categories of work are measured
consistently and that multiple levels of review occur. In addition,
should a written justification not support a recommended rating of
record, the Pay Pool Panel must afford the rating official an
opportunity to provide further justification for the recommendation
prior to adjusting the rating. This mechanism reinforces equity across
and within pay pools and is a necessary safeguard when rewarding
performance from a shared pay pool. Because supervisors may interpret
performance criteria differently, pay pools reconcile ratings to ensure
the criteria are applied consistently throughout a pay pool in order to
provide equity and fairness of ratings. Further, NSPS regulations
strictly prohibit a forced distribution of ratings. NSPS performance
criteria also make clearer distinctions in levels of performance,
assess employee performance more rigorously, and set a higher bar for
higher-level performance, ensuring that only the most highly performing
employees achieve a Level 5 rating of record. Consequently, the NSPS
performance management criteria often result in a different rating
distribution than found under other performance management systems. It
is precisely because of the rigor of the NSPS performance rating
process and criteria that there is equity in NSPS performance ratings
and distinctions in levels of performance. This rigor and these
thoughtfully crafted performance criteria result in a small,
distinguished group of high performers rated at the Level 5 NSPS rating
level. As a result, a selectee from this pool of candidates has a
record of proven performance, as demonstrated by award of the highest
rating possible. Such an employee has demonstrated, through day-to-day
performance that he or she possesses the applicable knowledge, skills,
abilities and/or competencies to perform the duties of the vacant
position in an exemplary manner.
In addition to the reconciliation process that takes place within
the pay pool, NSPS has implemented numerous rules to guard against
arbitrary performance rating decisions, enabling employees to challenge
or seek review of key decisions and setting up accountability
mechanisms to ensure that employees are treated fairly.
Use of the exceptional performance promotion procedure is not
required; however, should management choose to utilize this procedure,
the mechanisms and safeguards built into the NSPS performance appraisal
and evaluation process ensure that only the highest performing
employees receive a Level 5 rating.
Another commenter suggested that promoting employees based on only
``one good rating regardless of experience'' is not responsible and
that promotions should award those with a ``proven track record of
exceptional performance.'' While only those with an exceptional
performance rating can be considered through this procedure, selections
are made based on factors in addition to the rating, such as
experience, education, training, knowledge, skills, abilities,
competencies and other appropriate information consistent with merit
system principles.
4. Sufficient/Insufficient Change
Some commenters objected to waiving and/or modifying the various
provisions of title 5, stating that current hiring flexibilities were
sufficient. They also stated that the Department has not demonstrated
why changes are needed in the staffing and employment areas or how
these proposals would result in a less cumbersome or fairer hiring
process. Another commenter suggested that our proposals do not provide
enough hiring flexibilities. Yet another commenter applauded the
streamlining of the direct hire authority approval process. The
enabling legislation (5 U.S.C. 9902(i)) permits the Department to waive
or modify specified sections of title 5 U.S.C. and CFR, essential to
the development and implementation of a flexible system for hiring and
assigning employees. NSPS staffing and employment flexibilities were
designed and developed through a formal and rigorous process in
coordination with OPM. The flexibilities strike a balance between
enhancing the Department's ability to accomplish its many missions and
preserving compliance with essential important civil service
protections such as merit system principles and veterans' preference
requirements. When a position is filled through the competitive
examining process, we have provided the ability to limit the area of
consideration to candidates in the local commuting area and other
targeted recruitment sources in cases where sufficient qualified
candidates are available. The regulations also provide the capability
to convert non-permanent employees to permanent appointments in the
competitive service provided certain requirements are met; provide
flexibility for longer periods of temporary, term, and time-limited
appointments; and provide alternative promotion procedures for internal
placement actions. We are cognizant of the requirement to fully inform
and train supervisors, managers, and human resources personnel
regarding the various NSPS flexibilities so that they will be
understood and used to the fullest advantage. We believe the identified
flexibilities are sufficient at this time. However, if after a period
of operation and evaluation of the benefits provided by the new
flexibilities, we determine that other enhancements would be
beneficial, we will explore additional regulatory authorities for
hiring and assigning employees to meet critical national security
missions.
[[Page 2760]]
C. Specific Comments
1. Coverage
A commenter noted that the proposed rule indicates that the
regulations will apply to all DoD employees determined by the Secretary
to be covered under Sec. 9901.102(b). However, the commenter points
out that the section speaks specifically to coverage determinations for
subparts B through D of the NSPS regulations issued in 73 FR 56344 and
recommends that Sec. 9901.503 be amended to specifically address
subpart E. We agree with this recommendation and have modified the
regulations to reflect this change.
2. Appointing Authorities
Competitive and excepted appointing authorities. Section 9901.511
authorizes the Secretary to continue using excepted and competitive
appointing authorities under 5 U.S.C. chapter 33, Governmentwide
regulations, Executive orders, and other statutes. Individuals hired
under these authorities will be designated as career, career
conditional, term, temporary, or time-limited employees, as
appropriate.
A commenter asked if the provision for Schedule A hiring of the
disabled is still in place. Yes; under NSPS, activities may continue to
use the Schedule A hiring authority to appoint persons with
disabilities to NSPS positions.
Several commenters requested clarification on the inclusion of
career conditional appointments in NSPS. Previously, Public Law 108-136
permitted NSPS to establish its own workforce shaping rules. These
rules did not make distinctions in tenure between permanent employees
for the purpose of employee retention. Consequently, there was no need
for a career conditional tenure at that time. However, Public Law 110-
181 requires NSPS reductions in force (RIF) to comply with the
Governmentwide regulations appearing at 5 CFR part 351. Under those
regulations, the assignment of a specific tenure group is directly
related to an employee's retention standing and it is necessary to have
appointment types (career conditional and career) that align with the
Governmentwide tenure group definitions to apply RIF procedures.
A commenter disagreed with the definition of career employee.
Specifically, the commenter stated that the rule appears to take an
employee who is currently ``a career employee'' after completing a 1-
year probationary period and increase the requirement to 3 years. Under
the current NSPS rules, an employee who receives a permanent
appointment is immediately considered a career employee and does not
serve any ``conditional'' period. The initial probationary period
requirement is a separate requirement. Under this final rule, a
``career employee'' is defined as ``an individual appointed without
time limit to a competitive service position in NSPS who has served 3
years of substantially continuous service as described in 5 CFR
315.201(b).'' This definition requires that an employee's initial
permanent appointment to an NSPS position in the competitive service be
a conditional appointment and upon completion of the 3-year conditional
period he or she be designated as career, unless the employee has
previously completed a 3-year conditional service period in accordance
with 5 CFR 315.201(b). Any NSPS employee on a career appointment in the
competitive service who has not completed 3 years of substantially
continuous service at the time these regulations become effective must
be converted to a conditional appointment until the 3-year requirement
is met. Time already served under an NSPS career appointment counts
toward completion of the conditional period. No change was made to the
regulations based on this comment.
Another commenter asked if NSPS employees who are career employees
will be grandfathered in and remain career employees. It depends. On
the effective date of the final regulations, NSPS employees on career
appointments in the competitive service who do not meet the Sec.
9901.504 or 5 CFR part 315 definition of career employee will be
converted to a career conditional appointment. Time already served as a
career employee under NSPS, as well as creditable time under 5 CFR
315.201, will count toward completion of the 3-year career conditional
period. NSPS employees who meet the above-mentioned definitions will
remain career employees.
Several commenters stated that it is unclear whether or not both
career and career conditional appointments in NSPS have the same
stature as those types of appointments in non-NSPS positions throughout
the Federal Government, i.e., whether a former NSPS appointee would
have reinstatement eligibility under 5 CFR 315.401. Yes, both career
and career conditional employees within NSPS have the same ``stature''
as non-NSPS career or career conditional employees and a former NSPS
appointee would have reinstatement eligibility under 5 CFR 315.401.
Another commenter questioned whether NSPS service is creditable toward
career tenure in a non-NSPS position under 5 CFR 315.201(b)(1)(i)
through (xix). Yes, service under career and career conditional
appointments in NSPS competitive service positions is creditable in the
same manner and to the same extent as service under the same type of
appointments in non-NSPS positions. To minimize confusion regarding the
creditability of NSPS service under career and career conditional
appointments, additional guidance will be provided in implementing
issuances.
A labor organization representative suggested that OPM should
review the regulations in light of a recent court decision concerning
veterans' preference. We have not revised the regulations in response
to this comment. After further review of the regulatory text, we
conclude that these regulations fully comply with applicable veterans'
preference requirements.
Severe shortage/critical need hiring authority (direct hire
authority). This section authorizes the Secretary to determine when a
severe shortage or critical hiring need exists. A labor organization
representative expressed concern that the Secretary, rather than OPM,
has the authority to authorize direct hire authority for positions
determined to have a severe shortage of qualified applicants or where
there is a critical need. The representative stated that OPM should not
abandon its role as a monitor of agency actions to ensure that merit
principles are not violated and that no prohibited personnel practices
take place, asserting that letting DoD develop its own appointing
authorities runs the risk of creating opportunities for inequities,
discrimination, and abuse and threatens the credibility of the system
for employees. By design, and in keeping with the statutory objective
of establishing a flexible system, these regulations give DoD
considerable authority within the regulatory framework to design
staffing and employment features. When the Secretary determines a
severe shortage or critical hiring need exists, it is done using the
same criteria that OPM uses under 5 CFR part 337. Also, OPM continues
to have a role in overseeing the civil service system and in advising
the President on civil service matters, including matters covered by
these regulations. We believe the coordination and approval roles as
defined in Sec. 9901.105 allow OPM sufficient opportunity to fulfill
its responsibilities. Requiring OPM approval for every action would
undermine the intent to
[[Page 2761]]
create a flexible system, especially when the action is in response to
a time-sensitive national security matter or critical need, which DoD
is in the best position to assess. As a result, we have not revised the
language in this section in response to these comments.
Non-permanent appointing authorities. This section authorizes the
Secretary to make temporary and term appointments to NSPS positions in
the competitive service and temporary and time-limited appointments to
NSPS positions in the excepted service. It prescribes extended
timeframes for such appointments and provides a mechanism for the
noncompetitive conversion of certain nonpermanent employees to career
conditional or career appointments in the competitive service, provided
specific requirements are met. A labor organization representative
objected to the extended timeframe for term appointments in the
competitive service and asserted that some of the situations the
regulations state as reasons for term appointments more appropriately
justify a permanent appointment. The commenter stated that there is no
good justification for extending the timeframe of term appointments for
a longer period than Governmentwide regulations allow and that the
primary justification for doing so seems to be to bring these employees
on board through term appointment procedures and then convert them to
competitive non-term appointments. We have not revised the regulations
in response to these comments. Extended timeframes for term
appointments provide a valuable tool to the Department for
accomplishing its many mission requirements of a time-limited nature.
Extended time limits for such appointments are essential in an
organization driven by knowledge-based and other skills requirements
that are difficult to attract and retain on a temporary basis. We also
recognize that situations and/or work that are initially time-limited
in nature may, in fact, evolve into permanent work. The ability to
convert term employees to permanent appointments minimizes disruption
while permitting the Department to retain a valued employee who has, in
fact, gone through a competitive process and met additional
requirements prior to conversion to a permanent position. For example,
the first condition for conversion to a permanent appointment is that
the employee be selected for the non-permanent appointment under NSPS
competitive examining procedures from a vacancy announcement that
includes information to all applicants about the possibility of
noncompetitive conversion. Further, the employee must have completed at
least 2 years of continuous service at Level 3 (Valued Performer) or
better and be converted to a career conditional or career position in
the same pay schedule and band for which initially hired.
3. Probationary Periods
Section 9901.512 describes requirements for serving and
successfully completing probationary periods upon appointment to an
NSPS position in the competitive or excepted service or upon initial
appointment to a supervisory position.
A labor organization representative expressed concern that the
regulations could be read as requiring no less than 1 year. Section
9901.512(a)(3) clearly identifies the length of the probationary
periods and does not intend the time period of 1 year to be interpreted
as a minimum time period as feared by the commenter. Another commenter
expressed concern that removing the ability of a supervisor to appeal
being removed while on probation ``assures that all supervisors will
learn to be yes-men.'' This assertion has no basis. The NDAA for 2008
brought NSPS under certain Governmentwide rules, including the right of
employees to appeal an adverse action such as removal from Federal
employment. Additionally, Sec. 9901.512(b)(2)(i) retains the same
protection afforded under General Schedule that an employee who does
not satisfactorily complete a probationary period is entitled to be
assigned to a position at a grade or pay band and pay no lower than
that held before assignment to the supervisory position. This
protection coupled with the ability to remove the employee from the
supervisory position balances the organization's need to ensure the
capability of supervisory personnel while providing safeguards to the
employee who fails his or her supervisory position. No change has been
made to the regulations based on these comments.
A commenter questioned the provisions at Sec. Sec. 9901.512(a)(4)
and 9901.512(b)(1)(iii), which require that time spent in a non-pay
status in excess of one workday during the probationary period (both
initial and supervisory) extend the probationary period by an equal
amount of time. These provisions are intended to allow management the
full period to observe an employee's on-the-job performance and enable
a manager to remove the employee without undue restriction. However, we
have reviewed this provision in light of the requirements of 5 U.S.C.
chapter 75 (which provides appeal rights to competitive service
employees and preference eligible excepted service employees after 1
year and excepted service employees other than preference eligibles
after 2 years) and have determined that this provision does not result
in the intended goal. Therefore, we have revised the regulations to
reflect an allowable absence in a non-pay status consistent with the
provisions for non-NSPS employees covered under 5 CFR part 315, subpart
H.
A labor organization representative suggested that the regulations
clarify under Sec. 9901.512(a)(4)(ii) that if an employee is
successful on appeal in overturning a separation for performance or
conduct, all time served in the initial probationary period must be
restored and credited toward completion of the probationary period.
Insofar as a separation is overturned, it ceases to exist. Therefore,
the regulations provide sufficient clarity on this point. No change was
made to the regulations based on this comment.
A commenter requested clarification regarding the length of the
probationary period for preference eligibles with appeal rights. The
commenter also suggested adding information to the regulations to
address the limited appeal rights of Veterans' Recruitment Appointment
appointees terminated during the initial probationary period. We agree
and have modified the regulations accordingly.
A commenter questioned whether completion of a supervisory
probationary period in a different Federal position would be creditable
for an NSPS position. The regulations have been modified to state that
the prior completion of the supervisory probationary period under these
circumstances is creditable.
A commenter noted that the regulations require a supervisory
probationary period and questioned whether a probationary period is
required for an employee appointed to a managerial position. No change
was made to the regulations based on this comment. NSPS does not
require a managerial probationary period, since not all managerial
positions have responsibility over subordinate positions. Consequently,
a managerial position that is not titled and coded as supervisory is
not subject to a probationary period.
4. Competitive Examining Procedures
Section 9901.515 provides DoD the authority to use competitive
examining procedures to appoint applicants to career, career
conditional, term, and
[[Page 2762]]
temporary appointments in the competitive service and provides that the
Secretary will issue uniform policies, procedures, and guidance
concerning competitive examining for NSPS positions. This section also
discusses public notice requirements and the use of numerical rating
and ranking procedures and alternative ranking and selection procedures
(category rating). It retains OPM's authority to grant or deny a pass-
over request of a preference eligible with a compensable service-
connected disability of 30 percent or more as well as to make medical
qualifications determinations pertaining to preference eligibles.
Under NSPS, DoD must accept applications from all U.S. citizens,
including current Federal employees, for positions announced using
competitive examining procedures. If sufficient qualified applicants
are available, applicants from the local commuting area and other
targeted recruitment sources may be considered first. A commenter
recommended that we define what ``sufficient'' qualified candidates
means and that we include a requirement for the agency to publicly
disclose the total number of applications considered versus the total
number of applications received. We disagree that the term needs
further definition. The term is relative. Sufficiency depends on the
specifics of each recruitment action, including the number of
vacancies, the labor market and the type and level of position to be
filled. These various factors all contribute to ensuring that there are
a multiple number of quality choices from which to select. In response
to the comment that we include a requirement to publicly disclose the
number of applications considered versus the total number received, we
note that Governmentwide rules do not require a similar disclosure, and
we see no useful purpose served by this request. However, this
information is available in the case file generated for each selection
and is subject to internal review and audit as well as review by OPM.
A commenter noted that, under the numerical rating and ranking
procedures (one of the methods for determining which applicants will be
referred to the selecting official), the ``rule of 3'' should apply. We
disagree. Under NSPS, DoD has waived chapter 33 of title 5 of the
U.S.C., which among other things, mandates the rule of three. By
waiving this statutory provision, DoD is able to broaden the pool of
candidates from which to select and provide flexibility to acquire a
workforce tailored to its needs. No change was made based on this
comment.
5. Internal Placement
Section 9901.516 prescribes procedures regarding the assignment,
reassignment, reinstatement, detail, transfer, and promotion of
individuals or employees into or within NSPS. This section addresses
level of work determinations for determining when an action is
competitive or noncompetitive; contains information related to
detailing NSPS employees; and describes the NSPS Merit Promotion
Program, including competitive actions and exceptions to competition,
alternative promotion procedures, grievances, and maintaining records
for each promotion to a competitive service position filled through
internal competitive procedures.
A labor organization representative observed that the definitions
in Sec. 9901.103 of ``reassignment'' and ``reduction in band'' are
brief and do not contain enough detail to enable managers to make level
of work determinations or to determine whether an action will be
competitive or noncompetitive. The definitions the representative
refers to appear in the NSPS regulations published on September 26,
2008. These definitions, while brief, are quite specific. A
reassignment is described as a move to a different position or set of
duties in the same or comparable pay band, and a reduction in band is
described as a move from one pay band to a lower pay band while
continuously employed. The definitions also describe when reassignment
and reduction in band are appropriate for moves from positions outside
of NSPS to a NSPS position. The definitions are further supplemented by
definitions for comparable pay band or level of work and lower pay band
or level of work. These additional definitions clarify that
reassignment and reduction in band are based on level of work
determinations inherent in the NSPS classification structure. The
relationship of pay bands in the NSPS classification architecture and
information on level of work determinations for moves from non NSPS
positions to NSPS is described in the NSPS Classification and
Qualification implementing issuances. Consequently, no change was made
to the regulations based on this comment.
A labor organization representative stated that the NSPS definition
of ``promotion'' is more concrete than the definitions of ``reduction
in band'' and ``reassignment.'' The representative observed that, with
pay bands, promotions are less frequent than they are under the GS
system, meaning that far more mobility will take place as movement
within a band. The representative expressed concern that movements
within a pay band, or ``reassignments,'' may involve an increase in
base pay normally reserved for promotions under the GS system and that
managers will be able to decide when to give a pay increase or whether
to subject a movement to competition. They were particularly concerned
that employees could be reassigned with pay increases and other
employees would be given no notice or opportunity to compete.
The definitions of reassignment and promotion differ among
different personnel systems. NSPS is designed to be a modern,
contemporary, flexible, and agile human resources management system
intended to help DoD meet the national security challenges of the 21st
century, while following core merit system principles and protections.
The NSPS pay band recognizes a broader range of work than a General
Schedule grade within a single pay band also known as one discrete
level of work. Classification architectures utilizing a grade concept
describe narrower ranges of work for a single discrete level of work.
Consequently, where movements in a graded system would result in
promotion pay, the same movement in a pay-banded system may constitute
a reassignment. While pay progression in grade-based systems is
primarily based on promotions, pay progression in the NSPS pay-banded
system is primarily based on performance and secondarily on promotion
movements. In appropriate situations, as documented and authorized by
Component procedures, management may provide a discretionary base
salary increase to provide an incentive to employees to broaden skill
sets, take on more responsibilities, accept assignments that require
relocation, etc. To preserve the competitive procedures for promotion,
such increases are limited to an amount less than the minimum
percentage increase permitted by promotion rules. Providing an increase
in pay for a reassignment is not required and, where provided, may be
predicated on specific case information (e.g., the employee's salary in
range, what skills the employee brings to the position). At the same
time, the pay band structure recognizes that employees may be promoted
to a position in a higher pay band containing a higher level of work.
Consistent with merit promotion rules, promotion to a position in a
higher pay band, or at a higher level of work, in the
[[Page 2763]]
competitive service requires competition.
With respect to the comment regarding managers deciding when
reassignments will require competition or not, or when a notice of the
vacancy will be given, we note that, as with the GS system, many NSPS
positions to which employees are reassigned are advertised; however,
some are not. As under the GS system, some reassignments are done
competitively to increase the applicant base. Some reassignments are
also done competitively if the position to which the employee will be
reassigned ultimately leads to a position in a higher full performance
pay band (i.e., a higher level of work under the NSPS classification
architecture). Whether a position is advertised or not, employees who
are reassigned must be qualified for the position, unless they are
reassigned as a result of reduction in force procedures and
qualification requirements are waived. No change was made to these
regulations based on this comment.
A labor organization representative expressed concern that details
could ``go on forever'' without documentation and that ``a manager
could pick a favorite employee for a desirable detail with no record of
the action,'' making it ``difficult if not impossible to track movement
of employees in order to ensure that there is no prohibited
discrimination.'' In addition, the labor organization representative
asked specifically about what documentation was required for a GS
employee's detail to an NSPS position.
Consistent with Governmentwide regulations, NSPS does not impose a
specific timeframe that limits flexibility in accomplishing work. A
detail, however, is limited in that it involves the temporary
assignment of an employee to another position or set of duties to
perform work on a time-limited basis with the expectation that the
employee will return to the permanent position of record upon
expiration of the detail. NSPS does require documentation of some
details, in that details to higher pay bands beyond 180 days are
subject to competition. Management must evaluate the situation and
determine the appropriate assignment of employees. In some cases, it
may be better to temporarily promote an employee or fill a position on
a permanent basis.
The OPM Guide to Processing Personnel Actions provides technical
guidance regarding when documentation is required for a GS employee's
detail. Documentation is not dependent on whether the employee is
detailed to a different personnel system but on the duties assigned,
the organization or agency to which assigned, length of the detail, and
the grade of the position. Additional guidance regarding the conditions
surrounding a detail requiring documentation is in chapter 14 of the
Guide.
A commenter asked for clarification of the exception to competition
situation described at Sec. 9901.516(e)(7), which permits a
noncompetitive promotion to a higher pay band previously held on a
permanent or term basis in the competitive service. The commenter asked
that we make clear that holding a position on a term basis means on a
term appointment, not a temporary promotion or temporary appointment.
The commenter also suggested we state when the term appointment was
held and for how long, to ensure consistency. Alternatively, the
commenter suggested the regulations provide discretionary authority to
Components to specify the conditions under which a term appointment
could be used as the basis for a noncompetitive permanent action.
Finally, the commenter noted that, during base realignment and closure
and transformation efforts, term appointments and temporary promotions
for extended periods are common and expressed concern that this
provision seems to give an advantage to term applicants over permanent
employees who have held a position in a higher pay band on a temporary
basis for several years. We agree that this provision may be confusing
and have deleted the words ``or term'' from this paragraph.
A labor organization representative expressed concern that the
alternative promotion procedures bypassed competitive processes and
merit principles creating ``secret processes'' to fill vacancies.
Several commenters associated a formal vacancy announcement with
competition, transparency and merit selection. The NSPS regulations on
internal placement explicitly align with Governmentwide regulations by
adopting the merit promotion requirements under 5 CFR 335.103(b). These
merit promotion requirements provide the foundation for a systemic
means of selection according to merit. They include analysis of the job
to be filled to identify the knowledge, skills, abilities, and/or
competencies necessary to successfully perform the duties of the
position; clearance of applicable programs for displaced or surplus
employees, such as the DoD Priority Placement Program and the
Reemployment Priority List; determination that the selectees meet
applicable OPM or DoD qualification standards for the positions being
filled; and, selection of candidates determined to be best qualified
for the positions. Additionally, the identification, qualification,
evaluation, and selection of candidates must be made without regard to
political, religious, or labor organization affiliation or
nonaffiliation, marital status, race, color, sex, national origin,
nonqualifying physical handicap, or age, and must be based solely on
job-related criteria. Employees selected under alternative promotion
procedures have been judged on the recognized merit factors of
qualifications and performance. Although formal advertisement is not
required for selections under these procedures, the regulations require
that employees are notified in advance of the intent to use these
procedures.
A labor organization representative asked how absent employees or
those not physically present might receive consideration for positions
through these alternative means. The absence of an employee does not
preclude consideration under these procedures precisely because these
procedures do not necessarily require an application from the employee.
For example, all employees eligible and within the area of
consideration will automatically receive consideration through the
exceptional performance promotion procedure. Each Component will
determine specific processes for each procedure, and should a Component
request applications for any of these alternative methods, they will
also explain the provision and conditions for considering those who are
absent. However, we have amended Sec. 9901.516(e)(8) to clarify that
when alternative promotion procedures are used, appropriate
consideration must be given to employees within the area of
consideration who are absent for legitimate reasons, (e.g., on detail,
on leave, at training courses, in the military service, etc.).
A labor organization representative asked specific questions
regarding the execution of these alternative promotion procedures,
including whether employees would be informed when specific jobs became
available, whether employees would be informed of their ratings,
whether employees could challenge their ratings, how employees would be
informed of enough information to file a grievance if desired, and
whether the rating outcomes would be available for potential grievance
or EEO procedures. The goal of the alternative promotion procedures is
to provide an efficient procedure for filling positions
[[Page 2764]]
competitively. While we have provided the framework and requirements
for each alternative promotion procedure, Components will establish
specific guidelines for their use of each alternative promotion
procedure to be consistent with their merit promotion plans. It is
important to emphasize that employing alternative promotion procedures
does not negate merit promotion requirements. For example, like all
other competitive procedures, case files will be kept for each position
filled through these alternative procedures and will be made available
for grievance and EEO purposes. In addition, Components will continue
to provide necessary information to employees.
A labor organization representative asked for clarification
regarding who determines if the by-name request is ranked within the
highest quality group. The competitive process requires measuring the
candidate against the job-related criteria. If the candidate meets the
rating factors required for the highest level, the candidate may be
selected for the position. The human resources office determines
whether a candidate is ranked within the highest quality group.
Another commenter stated that the alternative promotion procedures
may be used as a means of circumventing veterans' preference,
particularly the hiring of disabled veterans. The application of
veterans' preference is a requirement when conducting competitive
examining, not in internal placement. The NSPS alternative promotion
procedures are only used to place employees internally within the
Department. NSPS upholds veterans' preference in the competitive
examining process. We have not revised the regulations in response to
this comment.
A labor organization representative questioned why the requirement
to maintain internal placement files was based solely on the time frame
of the grievance process and stated that this allowed ``premature
destruction'' of records without considering the EEO process. The
language regarding how long to maintain documents mirrors the language
as it exists today for General Schedule employees in 5 CFR
335.103(b)(5). Governmentwide experience to date has not indicated a
need for extending the time period for retention of these records. NSPS
does not change the procedures currently in place with respect to
meeting EEO or veterans' preference requirements. We have not changed
the regulations in regard to these comments.
III. Next Steps
The National Defense Authorization Act for Fiscal Year 2008
requires that this rule be considered a major rule for the purpose of
section 801 of title 5, United States Code. Consequently, before it can
take effect, the Department will submit to each House of the Congress
and to the Comptroller General a report containing the rule, a general
statement relating to the rule, and the proposed effective date of the
rule. The rule may not be effective until the date occurring 60 days
after the later of (1) Congressional receipt of the report, or (2) the
date the rule is published in the Federal Register. This rule is
subject to the procedures set forth in 5 U.S.C. 801-808.
E.O. 12866, Regulatory Review
DoD and OPM have determined that this action is a significant
regulatory action within the meaning of Executive Order 12866 because
there is significant public interest in the National Security Personnel
System. DoD and OPM have analyzed the expected costs and benefits of
the revised HR system, and that analysis was presented in the
supplementary information published with the rule on September 26, 2008
(Volume 73 Number 188) on page 56389.
The primary benefit to the public of NSPS resides in the HR
flexibilities that will enable DoD to attract, build, and retain a
high-performing workforce focused on effective and efficient mission
accomplishment. Staffing and employment regulations that streamline
hiring processes provide additional hiring flexibilities which will
result in a more qualified and proficient workforce and will generate a
greater return on investment in terms of productivity and
effectiveness. Taken as a whole, the changes included in these
regulations will improve upon the original NSPS regulations and result
in a contemporary, merit-based HR system that focuses on performance,
generates respect and trust, and supports the primary mission of DoD.
This rule has been reviewed by the Office of Management and Budget
in accordance with E.O. 12866.
Regulatory Flexibility Act
DoD and OPM have determined that these regulations will not have a
significant economic impact on a substantial number of small entities
because they will apply only to Federal agencies and employees.
Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35)
This final regulatory action will not impose any additional
reporting or recordkeeping requirements under the Paperwork Reduction
Act.
E.O. 12988, Civil Justice Reform
These regulations are consistent with the requirements of E.O.
12988. The regulations clearly specify the effects on existing Federal
law or regulation; provides clear legal standards; has no retroactive
effects; specifies procedures for administrative and court actions;
defines key terms; and is drafted clearly.
E.O. 13132, Federalism
DoD and OPM have determined these regulations will not have
Federalism implications because they will apply only to Federal
agencies and employees. The regulations will not have financial or
other effects on States, the relationship between the Federal
Government and the States, or the distribution of power and
responsibilities among the various levels of government.
Unfunded Mandates
These regulations will not result in the expenditure by State,
local, or tribal governments of more than $100 million annually. Thus,
no written assessment of unfunded mandates is required.
List of Subjects in 5 CFR Part 9901
Administrative practice and procedure, Employment, Government
employees, Labor-management relations, Labor unions, Reporting and
recordkeeping requirements, Wages.
Office of Personnel Management.
Michael W. Hager,
Acting Director, Office of Personnel Management.
Department of Defense.
Gordon England,
Deputy Secretary of Defense.
0
Accordingly, under the authority of section 9902 of title 5, United
States Code, the Department of Defense and the Office of Personnel
Management are adding subpart E, part 9901, of title 5, Code of Federal
Regulations, to read as follows:
PART 9901--DEPARTMENT OF DEFENSE NATIONAL SECURITY PERSONNEL SYSTEM
(NSPS)
Subpart E--Staffing and Employment
General
Sec.
9901.501 Purpose.
9901.502 Scope of authority.
[[Page 2765]]
9901.503 Coverage.
9901.504 Definitions.
External Recruitment and Internal Placement
9901.511 Appointing authorities.
9901.512 Probationary periods.
9901.513 [Reserved]
9901.514 Non-citizen hiring.
9901.515 Competitive examining procedures.
9901.516 Internal placement.
Authority: 5 U.S.C. 9902.
Subpart E--Staffing and Employment
General
Sec. 9901.501 Purpose.
(a) This subpart sets forth policies and procedures for the
recruitment for, and appointment to, positions; and assignment,
reassignment, detail, transfer, or promotion of employees, consistent
with 5 U.S.C. 9902(a) and (i).
(b) The Secretary will comply with merit principles set forth in 5
U.S.C. 2301 and with 5 U.S.C. 2302 (dealing with prohibited personnel
practices).
(c) The Secretary will adhere to veterans' preference principles
set forth in 5 U.S.C. 2302(b)(11), consistent with 5 U.S.C. 9902(i).
Sec. 9901.502 Scope of authority.
When a specified category of employees, applicants, and positions
is covered by the system established under this subpart, the provisions
of 5 U.S.C. 3301, 3302, 3304, 3317(a), 3318 and 3319 (except with
respect to veterans' preference), 3321 (except 3321(a)(2)), 3324, 3325,
3327, 3330, and 3341 are modified or waived and replaced with respect
to that category except as otherwise specified in this subpart. In
accordance with Sec. 9901.101, the Secretary may prescribe
implementing issuances to carry out the provisions of this subpart.
Sec. 9901.503 Coverage.
(a) At his or her sole and exclusive discretion, the Secretary may
decide to apply this subpart to a specific category or categories of
eligible civilian employees in organizations and functional units of
the Department at any time in accordance with the provisions of 5
U.S.C. 9902. However, no category of employee may be covered by this
subpart unless that category is also covered by subpart D of this part.
(b) The following employees and positions in DoD organizational and
functional units are eligible for coverage under this subpart:
(1) Employees and positions who would otherwise be covered by 5
U.S.C. chapter 33 (excluding members of the Senior Executive Service);
and
(2) Such others designated by the Secretary as authorized under 5
U.S.C. 9902.
Sec. 9901.504 Definitions.
In this subpart--
Career conditional employee means an individual appointed without
time limit to a competitive service position in NSPS who does not meet
the definition of a career employee.
Career employee means an individual appointed without time limit to
a competitive service position in NSPS who has served 3 years of
substantially continuous service as described in 5 CFR 315.201(b).
Competencies has the meaning given that term in Sec. 9901.103.
Detail means the temporary assignment, other than temporary
reassignment or temporary promotion, of an employee to another position
or set of duties with the expectation that the employee will return to
the permanent position of record upon expiration of the assignment. For
pay and benefits purposes and for the purpose of part 351 of this
title, an employee continues to encumber the position from which the
employee was detailed.
Initial probationary period means the initial period of service
immediately following an employee's appointment to the competitive or
excepted service, as specified in Sec. 9901.512, during which an
authorized management official determines whether the employee fulfills
the requirements of the position to which assigned.
Local commuting area is the geographic area that usually
constitutes one area for employment purposes. It includes any
population center (or two or more neighboring ones) and the surrounding
localities in which people live and can reasonably be expected to
travel back and forth daily to their usual place of employment.
Promotion has the meaning given that term in Sec. 9901.103.
Reassignment has the meaning given that term in Sec. 9901.103. For
the purpose of part 351 of this title, an official position does not
include a position to which an employee is reassigned on a temporary or
time-limited basis.
Reduction in band has the meaning given that term in Sec.
9901.103.
Supervisory probationary period means the first year of service
immediately following an employee's initial appointment or placement in
a supervisory position, as provided in 5 U.S.C. 3321(a)(2), during
which an authorized management official determines whether the employee
fulfills the requirements of the position to which assigned.
Temporary employee means an individual in the competitive or
excepted service who is employed for a limited period of time not to
exceed 1 year. The individual's appointment may be extended, up to a
maximum established under Sec. 9901.511(d), to perform the work of a
position that does not require an additional permanent employee.
Term employee means an individual in the competitive service who is
employed for a period of more than 1 year up to a maximum established
under Sec. 9901.511(d).
Time-limited employee means an individual in the excepted service
who is employed for a period of more than 1 year up to a maximum
established under Sec. 9901.511(d).
External Recruitment and Internal Placement
Sec. 9901.511 Appointing authorities.
(a) Competitive and excepted appointing authorities. The Secretary
may continue to use excepted and competitive appointing authorities
under chapter 33 of title 5, U.S. Code, Governmentwide regulations, or
Executive orders, as well as other statutes, and those individuals
appointed under these authorities will be given career, career
conditional, term or temporary appointments in the competitive service
or permanent, time-limited, or temporary appointments in the excepted
service, as appropriate. The competitive appointing authorities under
this paragraph are subject to the procedures in part 330 of this title,
except for 5 CFR 330.208 and 330.501.
(b) Additional appointing authorities. (1) The Secretary and the
Director may enter into written agreements providing for new excepted
and competitive appointing authorities for positions covered by the
National Security Personnel System, including noncompetitive
appointments, and excepted appointments that may lead to a subsequent
noncompetitive appointment to the competitive service.
(2) DoD and OPM will jointly publish a notice, and request
comments, in the Federal Register when establishing a new competitive
appointing authority or a new excepted appointing authority that may
lead to a subsequent noncompetitive appointment to a competitive
service position.
(3) The Secretary will prescribe appropriate implementing issuances
to administer a new appointing authority established under paragraph
(b) of this section.
[[Page 2766]]
(4) At least annually, a consolidated list of all appointing
authorities established under this section and currently in effect will
be published in the Federal Register.
(c) Severe shortage/critical need hiring authority. (1) The
Secretary will determine when a severe shortage of candidates or a
critical hiring need exists, as defined in 5 CFR part 337, subpart B,
for particular occupations, pay bands, career groups, and/or geographic
locations. The Secretary may decide that such a shortage or critical
need exists, or may make this decision in response to a written request
from the head of a DoD Component. These authorities may be used without
regard to competitive examination requirements described in Sec.
9901.515. Public notice will be provided in accordance with 5 U.S.C.
3304(a)(3)(A).
(2) For each specific authority, the Secretary will document the
basis for the severe shortage or critical hiring need, consistent with
5 CFR 337.204(b) or 337.205(b), as applicable.
(3) The Secretary may extend a direct hire authority if the
Secretary determines there is or will continue to be a severe shortage
of candidates or a critical hiring need for a particular position(s) as
of the date the authority is due to expire.
(4) The Secretary will terminate or modify a specific authority to
make appointments under this section when it is determined that the
severe shortage or critical need upon which the authority was based no
longer exists.
(5) The Secretary will notify OPM of determinations made under this
paragraph.
(d) Non-permanent appointing authorities. (1) The Secretary may
authorize appointments with time limits in the competitive or excepted
service, as appropriate, when the need for an employee's services is
not permanent. These appointments will be either temporary, term, or
time-limited as defined below:
(i) Temporary appointments. Temporary appointments are for a
specified period not to exceed 1 year and may be made in either the
competitive or the excepted service. A temporary appointment may be
extended for 2 additional years, in increments not to exceed 1 year, to
a maximum of 3 years. Temporary appointments may be made and extended
to positions involving intermittent or seasonal work without regard to
the maximum time limits. The circumstances under which a temporary
appointment is appropriate include, but are not limited to: Filling a
position to address a temporary workload peak or to complete a
temporary project; meeting a temporary staffing need that is
anticipated not to exceed a 1-year timeframe for reasons such as
abolishment, reorganization, or contracting out of a function;
anticipated reduction in funding; filling positions temporarily because
the positions are expected to be needed for placement of permanent
employees who would otherwise be displaced; or when the incumbent will
be out of the position for a temporary period of time, but is expected
to return. A temporary employee may be reassigned to another temporary
position provided the total combined service under the temporary
appointment does not exceed the maximum 3-year time limitation, the
employee meets the qualification requirements of the position, and the
conditions specific to the employee's appointing authority are met.
Temporary appointments are made as follows:
(A) Competitive service. Temporary appointments to positions in the
competitive service may be made using competitive procedures under
Sec. 9901.515, using the severe shortage/critical need hiring
authorities described in Sec. 9901.511(c), or by using direct hire
authority procedures under 5 CFR part 337, as appropriate. Temporary
appointments to positions in the competitive service also may be made
noncompetitively, consistent with 5 CFR part 316, or by any
noncompetitive appointing authorities granted to or by the Secretary.
(B) Excepted service. Temporary appointments to positions in the
excepted service are made under the procedures prescribed in 5 CFR part
302.
(ii) Term appointments in the competitive service. (A) Term
appointments are in the competitive service and will be for a period of
more than 1 year, but not to exceed 5 years. The term appointment may
be extended by an authorized management official for 1 additional year
to a maximum of 6 years. The circumstances under which a term
appointment is appropriate include, but are not limited to, project
work, extraordinary workload, uncertainty of future funding, scheduled
contracting out or abolishment of a function, the need to maintain
permanent positions for placement of potential surplus employees, or
when the incumbent will be out of the position for a significant period
of time, but is expected to return. A term employee may be promoted,
reassigned or reduced in band to another term position provided the
total combined service under the term appointment does not exceed the
maximum 6-year time limitation and the employee meets the qualification
requirements of the position.
(B) Term appointments may be made using competitive procedures
under Sec. 9901.515, using the severe shortage/critical need hiring
authorities described in Sec. 9901.511(c), or by using direct hire
authority procedures under 5 CFR part 337, as appropriate. Term
appointments also may be made noncompetitively consistent with 5 CFR
part 316 or by any noncompetitive appointing authorities granted to or
by the Secretary.
(iii) Time-limited appointments in the excepted service. Time-
limited appointments are in the excepted service and will be for a
period of more than 1 year. Time-limited appointments to positions in
the excepted service are made under the procedures prescribed in 5 CFR
part 302. A time-limited employee may be reassigned to another time-
limited position in the excepted service provided the employee meets
the qualification requirements of the position and the conditions
specific to the appointing authority applicable to the employee.
(2) Conversion to career conditional or career appointment. A non-
permanent employee serving in a competitive service position may be
converted without further competition to a permanent position (i.e.,
career or career conditional) if--
(i) The vacancy announcement met the requirements of Sec.
9901.515(a) and included the possibility of noncompetitive conversion
to a permanent position (i.e., career or career conditional) at a later
date;
(ii) The individual was appointed using the competitive examining
procedures set forth in Sec. 9901.515(b) and (c);
(iii) The employee completed at least 2 years of continuous service
at Level 3 (Valued Performer) or better; and
(iv) The employee is converted to a career conditional or career
position in the same pay schedule and band for which hired.
(e) Tenure group. For reduction in force purposes, NSPS employees
appointed to the competitive service are placed in one of the tenure
groups defined in 5 CFR 351.501(b) or, if appointed to the excepted
service, one of the tenure groups defined in 5 CFR 351.502(b).
Sec. 9901.512 Probationary periods.
(a) Initial probationary period. (1) An employee who is given a
career, career conditional, or term appointment in the competitive
service or a permanent or
[[Page 2767]]
time-limited appointment in the excepted service under this part is
required to complete a probationary period when the employee:
(i) Is appointed from a competitive list of eligibles established
under Sec. 9901.515, using the severe shortage/critical need hiring
authorities described in Sec. 9901.511(c), or by using direct hire
authority procedures under 5 CFR part 337; or
(ii) Is appointed to the competitive service either by special
authority or by conversion under subpart F or G of 5 CFR part 315,
unless specifically exempt from probation by the authority itself; or
(iii) Is reinstated, unless, during any period of service which
affords a current basis for reinstatement, the employee completed an
initial probationary period; or
(iv) Is appointed to a position in the excepted service under the
procedures prescribed in part 302 of this title.
(2) An employee serving an initial probationary period at the time
his or her permanent position is converted into NSPS, or at the time he
or she is assigned from a non NSPS position to an NSPS position, or at
the time he or she is reappointed through the DoD Priority Placement
Program or Reemployment Priority List established under part 330 of
this title after being involuntarily separated through no fault of the
employee, will continue the probationary period; i.e., the probationary
period does not start over.
(3) The probationary period required by Sec. 9901.512(a) is as
follows:
(i) Competitive service--1 year
(ii) Excepted service--
(A) 2 years for non-preference eligibles;
(B) 1 year for preference eligibles.
(4) Crediting Service. (i) Absence in an approved nonpay status
while on the rolls (other than for compensable injury or military duty)
is creditable up to a total of 22 workdays.
(ii) Service during an initial probationary period from which an
employee is separated for performance or conduct does not count toward
completion of probation required under a subsequent NSPS appointment.
(iii) The probationary period for part-time employees is computed
on the basis of calendar time, in the same manner as for full-time
employees. For intermittent employees, i.e., those who do not have
regularly scheduled tours of duty, each day or part of a day in pay
status counts as 1 day of credit toward the 260 days (actual ``work
days'' in a year, excluding weekends) needed to complete the 1-year
probationary period. The probationary period may not be completed in
less than 1 year calendar time.
(iv) Absence (whether on or off the rolls) due to compensable
injury or military duty is creditable in full upon restoration to
Federal service under part 353 of this title. An employee serving a
probationary period who leaves Federal service to become a volunteer
with the Peace Corps or the Corporation for National and Community
Services serves the remainder of the probationary period upon
reinstatement, provided the employee is reinstated within 90 days of
termination of service as a volunteer or training for such service.
(5) Termination of probationers for unsatisfactory performance and/
or conduct.
When an authorized management official proposes to terminate a
competitive service employee during his or her initial probationary
period because his or her performance and/or conduct during this period
fails to demonstrate his or her fitness or qualifications for continued
employment, the official will follow procedures at 5 CFR 315.804.
(6) Termination of probationers for conditions arising before
appointment. When an authorized management official proposes to
terminate a competitive service employee during his or her initial
probationary or trial period for reasons based in whole or in part on
conditions arising before the employee's appointment, the official will
follow procedures at 5 CFR 315.805.
(7) Appeals. Under NSPS, a competitive service employee, who is
terminated during the initial probationary period, will have limited
appeal rights to the Merit Systems Protection Board (MSPB) under 5 CFR
315.806. In addition, any individual serving under a Veterans
Recruitment Appointment, whose employment under the appointment is
terminated within 1 year after the date of such appointment, will have
the same right to appeal that termination as a career or career
conditional employee has during the first year of employment in
accordance with 5 CFR 315.806.
(b) Supervisory probationary period. Under NSPS, an employee is
required to serve a probationary period upon initial appointment to a
supervisory position. The supervisory probationary period is 1 year. An
employee serving a supervisory probationary period at the time his or
her permanent position is converted into NSPS will continue the
probationary period in the new position; i.e., the supervisory
probationary period does not start over.
(1) Crediting service toward completion of the supervisory
probationary period. (i) An employee who is reassigned, transferred,
promoted or reduced in band from one supervisory position to another
while serving a supervisory probationary period is subject to the
probationary period prescribed for the new position. Service in the
former position is credited toward completion of the probationary
period in the new position.
(ii) Temporary service in a supervisory position prior to the
supervisory probation when there is no break in service is creditable
toward completion of a supervisory probationary period. This includes
service on temporary promotion or reassignment to another supervisory
position while serving a supervisory probation. Service in a
nonsupervisory position is not creditable.
(iii) Absence in an approved nonpay status while on the rolls
(other than for compensable injury or military duty) is creditable up
to a total of 22 workdays.
(iv) Service during a supervisory probationary period from which an
employee was separated or demoted for performance and/or conduct does
not count toward completion of a supervisory probationary period
required under a subsequent appointment.
(v) Absence (whether on or off the rolls) due to compensable injury
or military duty is creditable in full toward completion of a
supervisory probationary period upon restoration to Federal service
under part 353 of this title.
(vi) An employee who has completed a supervisory probationary
period prior to movement into an NSPS position is not required to
complete another supervisory probationary period.
(2) Failure to complete the supervisory probationary period. (i)
Except as described in paragraph (b)(2)(ii) of this section, an
employee who, for reasons of supervisory performance, does not
satisfactorily complete the probationary period is entitled to be
assigned to a position at a grade or pay band and pay no lower than
that held before assignment to the supervisory position.
(ii) A nonsupervisory employee who is reduced in band into a
position that requires a supervisory probationary period and who, for
reasons of supervisory performance, does not satisfactorily complete
the probationary period is entitled to be reassigned to a grade or pay
band no lower than that held when serving the supervisory probation.
The employee is eligible for repromotion in accordance with NSPS
promotion rules under Sec. 9901.516.
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(iii) The agency must notify the employee in writing that he or she
is being assigned for failure to complete the supervisory probationary
period.
(iv) Appeals. (A) A competitive service employee, who, in
accordance with the provisions of this section, is assigned to a
nonsupervisory position, has no appeal right, except as provided in
paragraph (b)(2)(iv)(B) of this section.
(B) A competitive service employee who alleges that a Component
action under this section was based on partisan political affiliation
or marital status may appeal to the MSPB under 5 CFR 315.908(b).
(v) Relationship to other actions. (A) If an employee is required
to concurrently serve both a supervisory and an initial probationary
period, the latter takes precedence.
(B) An action that demotes an employee to a pay band lower than the
one the employee left to accept the supervisory position, for reasons
other than supervisory performance, is governed by part 752 of this
title.
Sec. 9901.513 [Reserved]
Sec. 9901.514 Non-citizen hiring.
The Secretary may establish procedures for appointing non-citizens
to permanent, temporary, or time-limited positions in the excepted
service, provided there is a demonstrated absence of qualified U.S.
citizens and applicable immigration and security requirements are met.
Non-citizens may not be promoted, reassigned, or reduced in band,
except in situations where a qualified U.S. citizen is once again
unavailable.
Sec. 9901.515 Competitive examining procedures.
(a)(1) Under NSPS, applicants are appointed to career, career
conditional, term, and temporary appointments in the competitive
service using competitive examining procedures consistent with part
300, subpart A of this title. In recruiting applicants from outside the
civil service for competitive appointments to competitive service
positions in NSPS, Components with examining authority may use either
numerical rating and ranking or alternative ranking and selection
procedures (i.e., category rating). Components must decide which
procedures to use prior to issuing a vacancy announcement and include
this information in the vacancy announcement.
(2) The Secretary will issue uniform policies, procedures, and
guidance concerning competitive examining for NSPS within the
Department and may delegate in writing authority for competitive
examining for NSPS positions. All actions taken under competitive
examining procedures will be made without regard to race, color,
religion, age, gender, national origin, political affiliation,
disability, sexual orientation, marital or family status, or other
prohibited criteria, and will be based solely on job-related factors.
These policies, procedures, and guidance will be consistent with the
``Uniform Guidelines on Employee Selection Procedures'' (1978) 43 FR
38290 (August 25, 1978) and part 332, subparts A and C of this title.
(b) Public notice. (1) Components will accept applications from all
U.S. citizens, to include current Federal employees, and at a minimum,
will consider applicants from the local commuting area. Components may
concurrently consider applicants from other targeted recruitment
sources, as specified in the vacancy announcement. A targeted
recruitment source is a category or grouping of potentially qualified
individuals, such as all students at a particular university in a
particular field of study. Targeted recruitment sources will be
selected with equal protection considerations in mind, such as whether
the sources will reach a diverse applicant pool. If there are
insufficient qualified candidates in both the local commuting area and
targeted recruitment sources, Components may consider applicants from
outside that area.
(2) When limiting consideration, the vacancy announcement will
clearly state that consideration will be limited if sufficient
qualified candidates are received from the local commuting area and
other targeted recruitment sources. If sufficient candidates are not
received from the local commuting area and other targeted recruitment
sources, consideration will be expanded to all applicants; i.e., the
area of consideration will not be expanded incrementally.
(3) No minimum announcement opening period is required. The open
period will be based on the type of position being filled and the
availability of qualified candidates in the labor market.
(c) Numerical rating and ranking procedures. When filling positions
using numerical rating and ranking, the procedures issued by the
Secretary will be followed. All qualified applicants may be referred
and selection may be made from among any referred applicant except that
a preference eligible will not be passed over to select a non-
preference eligible, unless procedures under 5 U.S.C. 3318 for passing
over a preference eligible are followed.
(d) Alternative ranking and selection procedures (category rating).
When filling positions using category rating, procedures issued by the
Secretary will be followed in lieu of the procedures in part 337,
subpart C, except for Sec. 337.304, of this title.
(e) Passing over preference eligibles. OPM retains the authority to
grant or deny a pass over request of a preference eligible with a
compensable service-connected disability of 30 percent or more and to
make medical qualifications determinations pertaining to preference
eligibles. The Secretary has the authority to grant or deny a pass over
request of a preference eligible with a compensable service-connected
disability of less than 30 percent.
Sec. 9901.516 Internal placement.
(a) Determining levels of work and movement within and across
career groups. The determination of when an action is a promotion,
reassignment, or reduction in band for competitive or noncompetitive
movement and related pay administration purposes, either between NSPS
positions or to an NSPS position from a non NSPS position, must be made
by applying the definitions of those terms at Sec. 9901.103.
(b) Eligibility for promotion to full performance band. An employee
with a rating of record of Level 1 or Level 2 is not eligible for
promotion to the full performance band of the position until such time
as the employee attains a rating of record of Level 3 or above. An
employee who does not have an NSPS rating of record may be promoted to
the full performance band of the position if an authorized management
official conducts a performance assessment and determines that the
employee is performing at the equivalent of Level 3 or above.
(c) Time after competitive appointment restriction. Restrictions on
the movement of an employee immediately after the employee's initial
appointment to Federal service as described in 5 CFR part 330, subpart
E, are not applicable to NSPS positions.
(d) Details. There is no time limit on details or any requirement
to extend them incrementally. An official personnel action is not
required to document a detail unless the detail exceeds one year,
crosses Component and/or Agency lines or assigns an employee from NSPS
to another pay system within the Component (e.g., NSPS to General
Schedule), or documents developmental rotational assignments or
deployment.
(e) NSPS Merit Promotion Program. In accordance with the
Secretary's authority to prescribe regulations for the
[[Page 2769]]
assignment, reassignment, reinstatement, detail, transfer, and
promotion of individuals or employees into or within NSPS, the
procedures below, in conjunction with the merit promotion requirements
in 5 CFR 335.103(b) constitute the NSPS Merit Promotion Program.
Internal placement actions may be made on a permanent or temporary
basis using competitive and noncompetitive procedures.
(1) All actions taken under the NSPS Merit Promotion Program,
whether involving the identification, qualification, evaluation, or
selection of candidates, will be made without regard to race, color,
religion, age, gender, national origin, political affiliation,
disability, sexual orientation, marital or family status or other
prohibited criteria and will be based solely on job-related factors.
(2) Vacancy announcements will identify areas of consideration that
are sufficiently broad to ensure the availability of high quality
candidates, taking into account the nature and level of the positions
covered. Employees within the area of consideration who are absent for
legitimate reason (e.g., on detail, on leave, at training courses, in
the military service, or serving in public international organizations
or on Intergovernmental Personnel Act assignments) must receive
appropriate consideration, if they apply for a vacant position; i.e.,
they cannot be excluded from consideration because they are absent.
Employees who are unable to apply for vacant positions while they are
away may also make other appropriate arrangements for consideration.
(3) To be eligible for promotion or placement, candidates must meet
the minimum qualification standards prescribed by either OPM or the
Department, as appropriate. Prior to the recruitment process,
authorized management officials will identify through job analysis the
job-related criteria that will be used to evaluate and determine the
best qualified candidates for referral. The job analysis will identify
the basic duties and responsibilities of the position being filled; the
knowledge, skills, abilities, and/or competencies required to perform
the duties and responsibilities; and the factors that are important in
evaluating candidates. The job analysis may cover a single position or
group of positions, or an occupation or group of occupations, having
common characteristics. Candidate evaluation will give due weight to
performance appraisals and incentive awards. When evaluating a
candidate's performance appraisals, consideration may be given to the
differences in performance appraisal systems. Job analysis requirements
will conform to the Uniform Guidelines on Employee Selection Procedures
in 29 CFR part 1607, and 5 CFR part 300, subpart A.
(4) Management has the right to select or not select from among a
group of highly qualified candidates and to select from appropriate
sources of candidates.
(5) Components will maintain a temporary record of each promotion
to a competitive service position filled through internal competitive
procedures to allow reconstruction of the placement action, including
documentation on how candidates were rated, ranked, and referred. These
records may be destroyed after 2 years or after the program has been
formally evaluated by OPM (whichever occurs first) if the time limit
for grievance has lapsed and destruction would otherwise be consistent
with the Department's Priority Placement Program requirements.
(6) Competitive actions. (i) Except as provided in paragraph (e)(7)
of this section, competitive procedures apply to promotion of an
employee to a higher pay band (i.e., a higher level of work) and to the
following actions:
(A) Temporary promotion or detail to a higher pay band for more
than 180 days. Prior service during the preceding 12 months under
noncompetitive temporary promotions or details to higher pay-banded
positions counts toward the 180-day total. A temporary promotion may be
made permanent without further competition, provided the temporary
promotion was originally made under competitive procedures and the fact
that the temporary promotion might lead to a permanent promotion was
made known to all potential candidates;
(B) Reassignment or reduction in band to a position with more
promotion potential than a position previously held on a permanent
basis in the competitive service (except as permitted by reduction in
force regulations at 5 CFR part 351);
(C) Transfer to a position at a higher pay band or with more
promotion potential than a position previously held on a permanent
basis in the competitive service; and
(D) Reinstatement to a permanent, term, or temporary position at a
higher pay band or with more promotion potential than a position
previously held on a permanent basis in the competitive service.
(ii) When determining whether the promotion potential of a General
Schedule position is lower than that of the promotion potential of the
NSPS position to which an employee moves, the definitions of higher,
lower, and comparable levels of work under Sec. 9901.103 will be
applied.
(7) Exceptions to competition. (i) Competitive procedures do not
apply to:
(A) Promotion resulting from the upgrading of a position to a
higher pay band level without significant change in the duties and
responsibilities due to the issuance of a new NSPS classification
standard or the correction of an initial classification error;
(B) Promotion resulting from an employee's position being
classified at a higher pay band level because of additional duties and
responsibilities;
(C) Promotion resulting from previous competitive selection for a
position with documented potential to a higher pay band;
(D) Temporary promotion or detail to a higher pay band or a
position with known promotion potential for 180 days or less;
(E) Promotion to a higher pay band previously held on a permanent
basis in the competitive service from which an employee was separated
or demoted for other than performance or conduct reasons;
(F) Promotion, reassignment, reduction in band, transfer, or
reinstatement to a position having promotion potential no greater than
the potential of a position an employee currently holds or previously
held on a permanent basis in the competitive service (or in another
merit system with which OPM has an approved interchange agreement) and
did not lose because of performance or conduct reasons;
(G) Consideration of a candidate not given proper consideration in
a competitive promotion action;
(H) Placement resulting from reduction in force procedures under 5
CFR part 351; and
(I) The appointment of career SES appointees with competitive
service reinstatement eligibility to any position for which they
qualify in the competitive service at any salary level, consistent with
5 CFR part 317, subpart G.
(ii) When determining whether the promotion potential of a General
Schedule position is lower than that of the promotion potential of the
NSPS position to which an employee moves, the definitions of higher,
lower, and comparable levels of work under Sec. 9901.103 will be
applied.
(8) Alternative promotion procedures. The Secretary may authorize
the use of the following alternative procedures to fill NSPS positions.
Use of these alternative procedures does not require
[[Page 2770]]
the posting of vacancy announcements; however, employees must be made
aware that these processes may be utilized via newsletters, bulletin
boards, websites, or other common methods of employee communication.
Use of these alternative procedures is subject to the requirements of
the DoD Priority Placement Program and the Reemployment Priority List.
Employees within the area of consideration who are absent for
legitimate reason (e.g., on detail, on leave, at training courses, in
the military service, or serving in public international organizations
or on Intergovernmental Personnel Act assignments) must receive
appropriate consideration, i.e., they cannot be excluded from
consideration because they are absent.
(i) Assessment boards. (A) Boards may convene to assess internal
candidates for current and future advancement opportunities based on
pre-established criteria. Pre-established criteria may include
experience, training, awards, education, performance evaluation scores
(ratings of record) or other appropriate information consistent with
merit system principles and the ``Uniformed Guidelines on Employee
Selection Procedures.''
(B) Boards will categorize employees into specific levels of
candidates to generate referral lists of ranked candidates for
occupational groups. These referral lists are valid for one year from
the date generated. Selection from the referral list should be further
justified based on specific job-related factors unique to the actual
vacancy.
(C) Boards, which should be comprised of senior level managers
(subject matter experts for each particular occupational group), may be
convened on an ad hoc basis or may be held annually in conjunction with
the performance evaluation process.
(ii) Alternate certification. A selecting official may make a by-
name request for an individual from any appropriate source of
Department or Component employees. The employee may be selected if
ranked within the highest quality group as determined by rating factors
established for the position.
(iii) Exceptional performance promotion. (A) An employee whose most
recent rating of record is a Level 5 performance rating may be promoted
to a vacant position in a higher pay band when the vacant position has
the same occupational series (or related interdisciplinary/
interoccupational series) and similar function as the position the
employee held at the time he or she received the Level 5 rating.
(B) Selecting officials must determine and document the area of
consideration, and must consider all employees in the area of
consideration whose current Level 5 rating was based on performance in
the same occupational series and similar function as the vacancy being
filled.
(9) Grievances. Employees have the right to file a complaint
relating to a promotion action. Such complaints will be resolved under
appropriate grievance procedures. The standards for adjudicating
complaints are set forth in 5 CFR part 300, subpart A. There is no
right of appeal to OPM, but OPM may conduct investigations of
substantial violations of OPM requirements.
[FR Doc. E9-899 Filed 1-15-09; 8:45 am]
BILLING CODE 5001-06-P