[Federal Register: December 3, 2008 (Volume 73, Number 233)]
[Proposed Rules]
[Page 73606-73617]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03de08-12]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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[[Page 73606]]
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: Proposed rule.
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SUMMARY: The Department of Defense (DoD) and the Office of Personnel
Management (OPM) are issuing a proposed regulation adding Subpart E,
Staffing and Employment, to the National Security Personnel System
(NSPS) regulation published in the Federal Register on September 26,
2008. NSPS is a human resources management system for DoD, originally
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. The proposed regulation governs staffing and
employment under NSPS.
DATES: Comments must be received on or before January 2, 2009.
ADDRESSES: You may submit comments identified by docket number NSPS-
OPM-2008-0139 and/or Regulatory Information Number (RIN) 3206-AL75.
Please arrange and identify your comments on the regulatory text by
section number; if your comments relate to the supplementary
information, please refer to the heading and page number. There are two
methods for submitting comments. Please submit only one set of comments
via one of the methods described.
Preferred Method for Comments: The preferred method for
submitting comments is through the Federal Rulemaking Portal: http://
www.regulations.gov. Follow the instructions for submitting comments.
Alternative Method for Comments: If unable to access the
Federal Rulemaking Portal, comments may be mailed to the following
address: DOD/OPM/NSPS Public Comments, PO Box 14474, Washington, DC
20044.
Instructions: All submissions must include the agency name and
docket number or RIN for this rulemaking. Mailed comments must be in
paper form. No mailed comments in electronic form (CDs, floppy disk, or
other media) will be accepted. The Federal Rulemaking Portal, http://
www.regulations.gov, will contain any public comments as received,
without change, unless the comment contains security-sensitive
material, confidential business information, or other information for
which public disclosure is restricted by statute. If such material is
received, we will provide a reference to that material in the version
of the comment that is placed in the docket. The docket system is an
``anonymous access'' system, which means that DoD and OPM will not know
your identity, e-mail address, or other contact information unless you
provide it in the body of your comment. Unless a comment is submitted
anonymously, the names of all commenters will be public information.
Please ensure your comments are submitted within the specified open
comment period. Comments received after the close of the comment period
will be marked ``late,'' and DoD and OPM are not required to consider
them in formulating a final decision.
Before acting on this proposal, DoD and OPM will consider all
comments we receive on or before the closing date for comments.
Comments filed late will be considered only if it is possible to do so
without incurring expense or delay. Changes to this proposal may be
made in light of the comments we receive.
FOR FURTHER INFORMATION CONTACT: For DoD, Bradley B. Bunn, (703) 696-
5604; for OPM, Charles D. Grimes III, (202) 606-8079
SUPPLEMENTARY INFORMATION: The Department of Defense (DoD or ``the
Department'') and the Office of Personnel Management (OPM) are
proposing to add staffing and employment provisions to the regulation
published in the Federal Register on September 26, 2008 (Volume 73,
Number 188) [Rules and Regulations] [Pages 56344-56420] pertaining 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), 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). The following information is
intended to provide interested parties with relevant background
material about, and a description of the staffing and employment
subpart of the regulation.
Significant Changes to the Original Law
The original NSPS statute was enacted on November 24, 2003, and
provided the Secretary of Defense, in regulations jointly prescribed
with the Director of OPM, the authority to establish a flexible and
contemporary civilian personnel system called the National Security
Personnel System. NSPS provided DoD with authority to deviate from
Governmentwide regulations in the areas of labor relations, adverse
actions and appeals, reduction in force, classification, compensation,
staffing, and performance management. This new civilian personnel
system was intended to cover most of the approximately 700,000 DoD
civilian employees.
The original statute provided authority to the Secretary of
Defense, notwithstanding 5 U.S.C. chapters 31, 33 and 35, to establish
qualifications requirements for, recruit for and make appointments to
NSPS positions; to establish methods of assigning, reassigning,
detailing, transferring, or promoting employees; and to establish
workforce shaping procedures that reduce disruption and place greater
emphasis on performance as a factor in retention. These authorities
enabled flexible processes to assign new or different work and to
streamline hiring processes.
Public Law 110-181 amended title 5, United States Code, retaining
authority for performance-based pay and classification and compensation
flexibilities, but substantially modifying
[[Page 73607]]
other NSPS authorities. The law, among other things--
Brings NSPS under Governmentwide rules for labor-
management relations, disciplinary actions and employee appeals of
adverse actions, and workforce shaping (reduction in force, furlough,
and transfer of function).
Requires that this rule be considered a major rule for the
purposes of section 801 of title 5, United States Code, with advance
Congressional notification for OPM/DoD jointly-prescribed NSPS
regulations.
Gives these rules the status of Governmentwide rules for
the purpose of collective bargaining under chapter 71 when these rules
are uniformly applicable to all organizational or functional units
included in NSPS.
Revised the staffing and employment authorities authorized
by NDAA 2004.
On October 14, 2008, section 1106 of the Duncan Hunter National
Defense Authorization Act for Fiscal Year 2009 was enacted, which
addressed staffing and employment authorities. Pursuant to this law,
the following NSPS staffing and employment authorities have been
retained under NSPS: Authority for the Secretary of Defense to waive 5
U.S.C. chapter 33 for the purpose of regulating methods of establishing
qualification requirements for, recruitment for, and appointments to
NSPS positions, as well as the methods of assigning, reassigning,
detailing, transferring, or promoting employees. In so doing, the
Secretary must comply with the provisions of 5 U.S.C. 2302(b)(11),
regarding veterans' preference requirements and 5 U.S.C. chapter 71.
Staffing and Employment--5 CFR 9901 Subpart E
This subpart provides DoD with authority, pursuant to 5 U.S.C.
9902(i), to modify and replace certain provisions of title 5 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 has been
revised to (1) Reflect changes in the NSPS as a result of the
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; (2)
provide specificity to the regulation based on existing implementation;
(3) reflect changes in subparts A through D of the regulation as
published on September 26, 2008, and (4) 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 greater flexibility to attract, recruit, assign and retain a high
quality workforce. Although the current General Schedule personnel
management system is based on important core principles, the General
Schedule does not embody the flexibility needed by DoD to meet mission
requirements. While preserving merit principles and veterans'
preference requirements, subpart E of the proposed regulations helps to
streamline hiring and placement processes and provides DoD with an
expanded set of flexible hiring tools to respond effectively to
continuing mission changes and priorities. Under the proposed
regulations, DoD managers will have greater flexibility in acquiring,
advancing, and assigning a workforce tailored to the Department's
needs. The new staffing flexibilities, in conjunction with the NSPS
compensation and classification flexibilities, provide DoD managers
with a greater range of options to adapt their recruitment and hiring
strategies to meet changing mission and organizational needs, including
consideration of the nature and duration of work. The proposed
regulations also address the need to compete for the best talent
available by providing the Department with the ability to streamline
and accelerate the recruitment process.
Definitions
The proposed regulations adopt, for staffing and employment
purposes, the definitions for the terms ``promotion'' and
``reassignment'' defined in regulations published in the Federal
Register on September 26, 2008 (Volume 73, Number 188) [Rules and
Regulations] [pages 56391--56392], to fit the NSPS pay banding
environment. In addition, the regulations adopt the term ``reduction in
band'' as defined in the above referenced regulations. This term
replaces ``change to lower grade'' which does not reflect the current
NSPS classification architecture. Under pay banding, the GS grade
structure is collapsed into fewer, broader salary ranges. Employees
progress through those ranges based primarily on performance and job
duties. Under NSPS, employees can also receive increased pay as a
result of a reassignment within or to a comparable pay band, reduction
to a lower pay band, or promotion to a higher pay band, as provided in
subpart C of the regulations published on September 26, 2008.
Appointing Authorities
Governmentwide Appointing Authorities. Under the proposed
regulations, the Department will continue to use excepted and
competitive appointing authorities under chapters 31 and 33 of title 5,
U.S. Code, Governmentwide regulations, or Executive orders, as well as
other statutes. Individuals hired under those authorities will be
designated as career, career conditional, term, temporary, or time-
limited employees, as appropriate.
Additional NSPS Appointing Authorities. Under the proposed
regulations, the Secretary and the Director may additionally establish
new excepted and competitive appointing authorities for positions
covered by NSPS. For any appointing authority that may result in entry
into the competitive service, including excepted service appointments
that may lead to a subsequent noncompetitive appointment to the
competitive service, DoD and OPM will jointly publish advance notice,
and request comment, in the Federal Register whenever it establishes
such an authority. In addition, DoD and OPM may establish excepted
appointing authorities for positions that are not in the competitive
service without specific notice in the Federal Register. The proposed
authority to establish new appointing authorities provides flexibility
to tailor appointments to the many unique DoD missions and employment
requirements. The proposed regulations require DoD to publish annually
a list of appointing authorities created under this authority which
remain in effect. DoD will prescribe appropriate implementing issuances
to administer a new authority.
Direct Hire Authority. The proposed regulations authorize DoD to
exercise direct hire authority, subject to existing legal and
regulatory standards without approval by OPM. The removal of this
additional time consuming step enables DoD to streamline this hiring
process while retaining the same legal and regulatory standards that
exist under the General Schedule.
Non-permanent Appointing Authorities. DoD may continue to use
existing temporary, term, and time-limited appointing authorities;
however, the proposed regulations provide for modified duration of such
appointments as well as modified advertising requirements, examining
procedures, and the appropriate uses of time-limited employees. Most
significantly, non-permanent appointments under NSPS may be extended
for longer time periods providing flexibility and tools to
[[Page 73608]]
respond to a larger variety of DoD missions requirements and
environments. The use of non-permanent employees in DoD assures
continuity of operations in response to temporary surges in workload,
extended absences due to military or civilian deployment, Base
Realignment and Closure (BRAC) actions, and the mission-driven
activities at Defense installations worldwide. The continuing dynamic
employment and national security environment within DoD requires that
DoD meet mission requirements using DoD civilian employees when an
active duty service member or contractor is not the best fit by
providing more agile non-permanent hiring authority. These proposed
regulations further streamline hiring practices and enhance flexibility
by establishing criteria under which term and temporary employees who
were hired via the competitive examining process may be converted
without further competition to a career or career conditional
appointment in the competitive service.
Recruitment and Competitive Examining. In order to increase the
efficiency of the recruiting and hiring process without compromising
merit principles, the proposed regulations allow DoD to target its
recruiting strategy. DoD will provide public notice for all vacancies
in the competitive service and accept applications from all sources;
however, if there are sufficient qualified candidates in the local
commuting area and other targeted sources, consideration may be limited
to those applicants. If there are insufficient qualified candidates in
the local commuting area, DoD may consider applicants from outside that
area. Permitting limited consideration under competitive examining to
qualified applicants in a commuting area instead of considering
potentially hundreds or thousands of applications from across the
country, facilitates mission accomplishment by streamlining the hiring
process and significantly reducing the amount of time a position
remains vacant. The proposed regulations further streamlines hiring
processes by extending examining authority to DoD, to be exercised in
accordance with chapters 31 and 33 of title 5, U.S. Code. To exercise
this authority, DoD will develop and coordinate examining procedures
which will remain subject to OPM oversight. Examining procedures will
adhere to the core values of merit system principles in 5 U.S.C. 2301
and veterans' preference requirements set forth in 5 U.S.C. 3309
through 3320, as applicable, and will be available in writing for
applicants to review.
Altenative Promotion Procedures
The proposed regulations establish and provide authority to use
several alternative forms of competition for merit promotion purposes.
These alternative promotion procedures continue to require an analysis
of the job to be filled to identify knowledges, skills, abilities, and/
or competencies required. The alternative promotion procedures also
require notification to potential candidates; an evaluation to
determine highly qualified candidates; and consideration of registrants
in the DoD Priority Placement Program or Reemployment Priority List.
However, these promotion procedures do not require advertisement via
the standard vacancy announcement procedures. These alternative forms
of competition include the use of assessment boards, alternate
certification procedures, and selection for promotion from among
qualified employees with exceptional (i.e., role model) performance
ratings. The alternative promotion procedures help to streamline
internal recruitment processes thereby reducing the time period a
position remains vacant.
Additional key changes to this subpart include (1) Adding detailed
rules regarding non-permanent appointing authorities for competitive
and excepted service positions (including periods of time for which
appointments may be made or extended and other conditions); (2)
establishment of time limits on initial and supervisory probationary
periods to align with time periods governing application of
Governmentwide adverse action procedures; (3) establishment of specific
rules on initial and supervisory probationary periods, crediting
service and termination processes; (4) establishment of specific rules
describing the competitive examining process; (5) establishment of
specific rules for internal placement (including the NSPS Merit
Promotion Program); and, (6) establishment of a career conditional
appointment and redefinition of career appointments under NSPS to
reflect coverage of NSPS employees under Governmentwide workforce
shaping rules as a result of Public Law 110-181.
Modifications to this subpart reflect changes in law and regulation
while continuing to reflect the Department's commitment to provide
constructive and effective ways to attract, recruit, and retain
employees; enhance management's flexibilities to respond more
competitively to changing labor markets; facilitate movement into and
within NSPS; and provide the flexibility the Department needs to
streamline the hiring process and adapt quickly to critical and
changing mission needs and priorities while preserving merit system
principles and veterans' preference in every aspect of the system's
design. DoD managers will have greater flexibility in acquiring and
advancing a workforce tailored to the Department's needs. The
flexibilities provide DoD managers with a greater range of options to
adapt their recruitment and hiring strategies to meet changing mission
and organizational needs including consideration of the nature and
duration of work. Finally, the proposed regulations also address the
need to compete for the best talent available and reduce the period of
time a position remains vacant by providing the Department with the
ability to streamline and accelerate the recruitment process.
The following table lists, by specific regulatory section, a brief
description of each significant change to subpart E of section 9901 of
the rule published in the Federal Register dated November 1, 2005
(Volume 70, Number 210) [Pages 66201-66203].
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Description of proposed change
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Sec. 9901.502.............. Scope of authority. This section
specifies the provisions of Federal
statute waived under the staffing and
employment rules for NSPS. This section
has been modified to reflect coverage of
5 U.S.C. 3321(a)(2) with respect to this
subpart and to delete reference to
waiver of 5 U.S.C. 5112(a) pertaining to
the general authority of the Office of
Personnel Management concerning position
classification and the development of
qualification requirements for a
position. This latter provision has
already been waived via waiver of 5
U.S.C. chapter 51 under Sec. 9901.203
and provisions for identification and
establishment of qualification
requirements are outlined in Sec.
9901.212(d).
[[Page 73609]]
Sec. 9901.504.............. Definitions. This section provides
definitions of terms specific to subpart
E. This revision adds definitions for
the terms detail, initial probationary
period, local commuting area, and
supervisory probationary period. The
definition for a career employee is
modified and a definition for a career
conditional employee is added. Also
added is the term competencies with a
cross reference to Sec. 9901.103 where
the term is defined. The revised
regulation slightly modifies the
definition of temporary employee to
clarify application to both the
competitive and excepted service and to
add a cross reference. Additionally, the
definition of term employee is revised
to pertain to an employee in the
competitive service and the definition
of time-limited employee is also revised
to pertain to an employee in the
excepted service.
Sec. 9901.511(c)........... Paragraph (c), Severe shortage/critical
need hiring authority of this section of
the rule published in the Federal
Register dated November 1, 2005 (Volume
70, Number 210) [Pages 66201-66203] is
modified. Specifically, paragraph (c)(1)
is modified to provide that the
Secretary must make the determination
that a severe shortage/critical hiring
need exists and may make this
determination on his/her own or in
response to a written request from the
Head of a DoD Component.
Adds a new paragraph (c)(3) to this
section authorizing the Secretary to
extend a direct hire authority which is
due to expire when he/she determines
that there is or will continue to be
severe shortage/critical hiring need.
Renumbers paragraphs (c)(3) and (c)(4) as
(c)(4) and (c)(5), respectively.
Sec. 9901.511(d)(1)........ Non-permanent appointing authorities.
This paragraph retains the Secretary's
authority to prescribe a duration of
appointment for temporary, term, and
time-limited appointments that is
different than that prescribed in
Governmentwide rules. However, this
paragraph of the rule published in the
Federal Register dated November 1, 2005
(Volume 70, Number 210) [Pages 66201-
66203] is modified to specify the
procedures for appointing employees
under temporary, term, and time-limited
appointments in the competitive and
excepted service.
Sec. 9901.511(d)(1)(i)..... Temporary appointments. A new paragraph
is added describing the purpose of
temporary appointments, establishing
specific time limits for temporary
appointments, and providing for
reassigning employees on temporary
appointments to another temporary
position provided the total combined
service does not exceed the maximum 3-
year limitation.
New paragraphs (d)(1)(i)(A) and
(d)(1)(i)(B) are added to this section
to clarify that temporary appointments
may be made to both competitive and
excepted service positions using
applicable appointment procedures.
Sec. 9901.511(d)(1)(ii).... Term appointments in the competitive
service. A new paragraph (d)(1)(ii)(A)
is added to specify procedures for the
use of term appointments. These
procedures describe the purpose of term
appointments, establish time limits for
term appointments, and provide for the
ability to promote, reassign, or reduce
in band employees on term appointments.
These procedures preclude the use of
employees on term appointments in
positions that should be filled on a
permanent basis except when necessary to
accomplish permanent work in
circumstances where the position cannot
be filled permanently.
A new paragraph (d)(1)(ii)(B) is added to
specify that these appointments may be
made competitively or noncompetitively
using applicable procedures.
Sec. 9901.511(d)(1)(iii)... Time-limited appointments in the excepted
service. A new paragraph is added to
authorize non-permanent appointments in
the excepted service for more than 1
year, but does not place a limit on the
duration of the appointment, consistent
with these types of appointments under
OPM regulations. The new paragraph
specifies that these appointments may be
made using procedures at 5 CFR part 302
and provides for reassigning these
employees to other time-limited
positions in the excepted service as
long as the employee meets the
qualification requirements for the
position.
Sec. 9901.511(d)(2)(iv).... Conversion to career conditional or
career appointment. Adds a new paragraph
to specify a non-permanent employee may
be noncompetitively converted to a
career conditional or career appointment
provided that the position he or she is
converted to is in the same pay schedule
and band for which hired on the non-
permanent appointment.
Sec. 9901.511(e)........... Tenure group. Adds new paragraph
specifying that assignment of tenure
group codes for reduction in force
purposes is based on tenure group
definitions in 5 CFR 351.501(b) for
competitive service and 5 CFR 351.502(b)
for excepted service.
Sec. 9901.512.............. Probationary periods. Revises language
formerly found in Sec. 9901.512 of the
rule published in the Federal Register
dated November 1, 2005 (Volume 70,
Number 210) [Pages 66201-66203] to
prescribe conditions of probationary
periods to include types of probationary
periods, creditable service, failure to
complete a probationary period,
conditions for termination of
probationers, appeal rights, and
relationship of probationary periods to
other actions.
Sec. 9901.512(a)(1)-(a)(3). Initial probationary period. Revises
paragraph (a) of this section in the
rule published in the Federal Register
dated November 1, 2005 (Volume 70,
Number 210) [Pages 66201-66203] to state
employment situations that require an
initial probationary period and
identifies applicable time limits.
Sec. 9901.512(a)(4)........ Crediting service. Adds new paragraph to
describe how time served under an
appointment is credited toward
completion of the initial probationary
period.
Sec. 9901.512(a)(5)........ Termination of probationers for
unsatisfactory performance and/or
conduct. Adds new paragraph to require
termination of employees during an
initial probationary period for
performance and/or conduct to follow
Governmentwide regulations at 5 CFR
315.804.
Sec. 9901.512(a)(6)........ Termination of probationers for
conditions arising before appointment.
Adds a new paragraph to require
termination of employees during an
initial probationary period for reasons
based in whole or in part on conditions
arising before the employee's
appointment to follow Governmentwide
regulations at 5 CFR 315.805.
[[Page 73610]]
Sec. 9901.512(a)(7)........ Appeals. Adds a new paragraph to afford
competitive service employees who are
terminated during the initial
probationary period limited appeal
rights to the Merit Systems Protection
Board in accordance with 5 CFR 315.806.
Sec. 9901.512(b) and (b)(1) Supervisory probationary period. Revises
paragraph (b) of this section of the
rule published in the Federal Register
dated November 1, 2005 (Volume 70,
Number 210) [Pages 66201-66203] to
establish a supervisory probationary
period and limits such periods to 1
year.
Adds paragraph (b)(1) to this section
describing how service is credited
toward completion of the supervisory
probationary period.
Sec. 9901.512(b)(2)........ Failure to complete the supervisory
probationary period. Adds new paragraph
to include and expand language at Sec.
9901.512(b) to explain placement options
for employees who fail the supervisory
probationary period.
Adds paragraph (b)(iii) requiring that an
employee be notified in writing when
reassigned for failure to complete the
supervisory probationary period.
Sec. 9901.512(b)(2)(iv).... Appeals. Adds new paragraph (A) to state
that an employee who is placed in a
nonsupervisory position for failure to
successfully complete a supervisory
probationary period has no appeal right.
Adds new paragraph (B) to permit employee
alleging partisan political affiliation
or marital status as the reason for
failure of the supervisory probationary
period to appeal to the Merit Systems
Protection Board under 5 CFR 315.908(b).
Sec. 9901.512(b)(2)(v)..... Relationship to other actions. Adds two
new paragraphs. Paragraph (A) requires
that when an initial probationary period
and a supervisory probationary period
are served concurrently, the former
takes precedence.
Paragraph (B) requires application of 5
CFR 752 when an employee is demoted to a
lower pay band than the one he/she left
to accept the supervisory position if
demoted for other than supervisory
performance.
Sec. 9901.513.............. Removes material formerly found in this
section addressing Qualification
standards. Authority for establishing
NSPS-unique qualification standards or
modifying OPM qualification standards
for NSPS positions is found at Sec.
Sec. 9901.211 and 9901.212.
Sec. 9901.514.............. Non-citizen hiring. Revises paragraph to
specify that non-citizens may be hired
to permanent, temporary, or time-limited
appointments in the excepted service
when an absence of qualified U.S.
citizens is demonstrated. New language
also prevents movement to other
positions unless a qualified U.S.
citizen is unavailable.
Sec. 9901.515(a)(1)........ Competitive examining procedures. Revises
paragraph (a) and (a)(1) to state that
competitive examining procedures may be
used to make career, career conditional,
term, and temporary appointments in the
competitive service. Includes language
authorizing the use of numerical rating
and ranking or category ranking and
selection procedures, but specifies that
the decision on which method to use must
be made prior to issuing a vacancy
announcement.
Sec. 9901.515(a)(2)........ New language provides that the Secretary
will issue uniform policies, procedures,
and guidance for competitive examining
consistent with Governmentwide
procedures prescribed in 5 CFR part 332
and provides that the authority to
conduct competitive examining for NSPS
positions may be delegated in writing.
Sec. 9901.515(b)........... Public notice. Replaces material in
paragraph (b) with information
previously found in Sec.
9901.515(a)(1), (2), (3), and (4). This
new language specifies area of
consideration and public announcement
for positions filled using competitive
examining procedures.
Sec. 9901.515(c)........... Numerical rating and ranking procedures.
Revises paragraph to specify procedures
to be used when filling positions using
numerical rating and ranking approach
and to clarify that preference eligible
applicants may not be passed over to
select a non-preference eligible, unless
procedures for passing over a preference
eligible are followed.
Sec. 9901.515(d)........... Alternative rating and selection
procedures (category rating). Replaces
material at paragraph (c) to specify
procedures to be used when filling
positions using the category rating and
selection method of competitive
examining.
Sec. 9901.515(e)........... Passing over preference eligibles. Adds
new paragraph confirming OPM retains
authority to grant or deny a request to
pass over a preference eligible with a
compensable service-connected disability
of 30% or more and to make medical
qualifications determinations pertaining
to preference eligibles.
Sec. 9901.516.............. Internal placement. This section is
revised to codify current application of
NSPS regulations with regard to internal
placement.
Sec. 9901.516(a)........... Determining levels of work and movement
within and across career groups. Adds
paragraph to state that the definitions
found in Sec. 9901.103 for the terms
promotion, reassignment, and reduction
in band must be applied when determining
whether an action does or does not
require competition and in applying pay
administration procedures.
Sec. 9901.516(b)........... Eligibility for promotion to full
performance band. Adds paragraph to
require rating of record at Level 3 or
above (or determination by authorized
management official that performance
meets this level) before an employee in
a career ladder position may be promoted
to the full performance band.
Sec. 9901.516(c)........... Time after competitive appointment
restriction. Adds paragraph that
indicates that the restrictions on
movement of an employee immediately
after initial appointment are not
applicable to NSPS positions.
Sec. 9901.516(d)........... Details. Adds paragraph to prescribe that
details may be made without a time limit
and that an official personnel action is
only required in certain situations.
[[Page 73611]]
Sec. 9901.516(e)........... NSPS Merit Promotion Program. Adds
paragraphs (e)(1) through (e)(5) that,
in conjunction with requirements at 5
CFR part 335, establish the NSPS Merit
Promotion Program. Prescribes that all
actions must be taken in accordance with
merit system principles. Requires
employees who are absent for legitimate
reasons to receive consideration for
vacancies. Requires applicants to meet
minimum qualification standards.
Requires a job analysis to identify the
basic duties and responsibilities of the
position to be filled and the knowledge,
skills, and abilities and/or
competencies necessary to successfully
perform the work of the position.
Prescribes management's right to select
or not select from among any group of
highly qualified candidates and from
appropriate sources of candidates.
Requires maintenance of records for a
specified period documenting how each
competitive service position is filled
through internal competitive procedures
to allow reconstruction of the placement
action if necessary.
Sec. 9901.516(e)(6)........ Competitive actions. Adds paragraph to
specify which promotion actions require
the application of competitive
procedures (e.g., promotion to a higher
pay band, temporary promotion or
temporary detail to a higher pay band
for more than 180 days, et al.).
Sec. 9901.516(e)(7)........ Exceptions to competition. Adds paragraph
to specify which promotion actions do
not require competitive procedures
(e.g., promotion to a full performance
band when competition previously
occurred, promotion when position is
reclassified as a result of the issuance
of a new classification standard,
promotion when position is reclassified
because of additional duties and
responsibilities, et al.).
Sec. 9901.516(e)(8)........ Alternative promotion procedures. Adds
new paragraph describing alternative
forms of competition that do not require
a vacancy announcement, to include
assessment boards, alternative
certification, and exceptional
performance promotion. Employees must be
made aware that these flexibilities may
be used; notice may be given via
newsletters, bulletin boards, Web sites,
or other common methods of employee
communication.
Sec. 9901.516(e)(9)........ Grievances. Adds new paragraph providing
for employee right to file a complaint
relating to a promotion action via
appropriate grievance procedures.
Although there is no right of appeal to
OPM, OPM may conduct investigations of
substantial violations of OPM
requirements.
------------------------------------------------------------------------
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. As such, 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. Congress has the
opportunity to delay implementation of the rule based on 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. A performance-based pay system that rewards excellent
performance 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 proposed 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 would not have a
significant economic impact on a substantial number of small entities
because they would apply only to Federal agencies and employees.
Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35)
This proposed regulatory action will not impose any additional
reporting or recordkeeping requirements under the Paperwork Reduction
Act.
E.O. 12988, Civil Justice Reform
This proposed regulation is consistent with the requirements of
E.O. 12988. The regulation clearly specifies 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 proposed regulations would not
have Federalism implications because they would apply only to Federal
agencies and employees. The proposed regulations would 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 proposed regulations would 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, Government employees, Labor
management relations, Labor unions, Reporting and recordkeeping
requirements, Wages.
[[Page 73612]]
Office of Personnel Management.
Michael W. Hager,
Acting Director, Office of Personnel Management.
Department of Defense.
Gordon England,
Deputy Secretary of Defense.
Accordingly, under the authority of section 9902 of title 5, United
States Code, the Department of Defense and the Office of Personnel
Management are proposing to add subpart E to 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
Sec.
General
9901.501 Purpose.
9901.502 Scope of authority.
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) This subpart applies to eligible DoD employees and positions in
the categories listed in paragraph (b) of this section, subject to a
determination by the Secretary under Sec. 9901.102(b).
(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
with the expectation that the employee will return to the permanent
position of record upon expiration of the assignment. For pay and
benefit purposes, 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
[[Page 73613]]
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.
(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 (c).
(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 project;
meeting a staffing need that is anticipated not to exceed a one-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 three-year time limitation, the employee meets the
qualification requirements of the position, and provided 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
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 six-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
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
[[Page 73614]]
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 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
procedures under 5 CFR part 337; or
(ii) Is appointed to the competitive service either by special
authority or by conversion under subparts 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--2 years, except for preference eligibles who
have appeal rights after 1 year under 5 CFR part 752.
(4) Crediting Service. (i) Time spent in a non-pay status in excess
of one workday during the initial probationary period will extend the
probationary period by an equal amount of time.
(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 one 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 under
part 353 of this title to Federal service. 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 an 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 an 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.
(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) Time spent in a non-pay status in excess of one workday
during the supervisory probationary period will extend the probationary
period by an equal amount of time.
(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.
(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 which 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.
[[Page 73615]]
(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) An 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) An 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, competitive examining is authorized to appoint
applicants to career, career conditional, term, and temporary
appointments in the competitive service. 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. These policies, procedures, and guidance
will be consistent with 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. 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 applicants 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 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 part 335 of this
title 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
[[Page 73616]]
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 for promotion 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
or term 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 the posting of
vacancy announcements; however, employees must be made aware that these
processes may be utilized via newsletters, bulletin boards, Web sites,
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.
(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
[[Page 73617]]
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. E8-28672 Filed 12-2-08; 8:45 am]
BILLING CODE 6325-39-P