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[Federal Register Volume 75, Number 239 (Tuesday, December 14, 2010)]
[Rules and Regulations]
[Pages 77753-77756]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-31255]

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DEPARTMENT OF DEFENSE

Office of the Secretary

[Docket ID: DoD-2010-OS-0141; RIN 0790-AI66]

32 CFR Part 241

Pilot Program for the Temporary Exchange of Information 
Technology Personnel

AGENCY: Department of Defense (DoD), Assistant Secretary of Defense 
(Networks and Information Integration)/DoD Chief Information Officer 
(ASD(NII)/DoD CIO).

ACTION: Interim final rule.

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SUMMARY: The Department of Defense (DoD) is issuing regulations to 
implement provisions contained in section 1110 of the National Defense 
Authorization Act (NDAA) for Fiscal Year (FY) 2010, October 28, 2009, 
which authorizes DoD to establish a Pilot Program for the Temporary 
Exchange of Information Technology (IT) Personnel. This statute 
authorizes the temporary assignments of DoD IT employees to private 
sector organizations. This statute also gives DoD the authority to 
accept IT employees for temporary assignments from private sector 
organizations. This Pilot is envisioned to promote the interchange of 
DoD and private sector IT professionals to enhance skills and 
competencies. The prompt implementation of an interim final rule is 
crucial in assisting DoD to pilot a program to enhance its position and 
expertise in the IT field, particularly in cybersecurity.
    The Administration has expressed considerable interest in the IT 
area, and stressed its importance in a recent Cyberspace Review Report. 
Given the changing workforce dynamics in the IT field, DoD needs to 
take advantage of these types of professional development programs to 
proactively position itself to keep pace with the changes in 
technology.
    The immediate implementation of an Interim Final Rule is viable to 
enhance IT professional skills, particularly in the area of 
cybersecurity. Several Components including Defense Information Systems 
Agency, Defense

[[Page 77754]]

Advanced Research Projects Agency, Office of Naval Research, Office of 
the DoD's Chief Information Officer, and Department Air Force, and 
Department of the Army are ready to participate. The program is not 
controversial and delayed implementation would deny an important 
benefit to the Department and the public. The ITEP would serve the 
public good by enhancing the DoD IT workforce skills to protect and 
defend our nation.

DATES: Effective December 14, 2010. Comments must be received by 
February 14, 2011.

ADDRESSES: You may submit comments, identified by docket number and/or 
RIN number and title, by any of the following methods:
     Federal Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Federal Docket Management System Office, 1160 
Defense Pentagon, OSD Mailroom 3C843, Washington, DC 20301-1160.
    Instructions: All submissions received must include the agency name 
and docket number or Regulatory Information Number (RIN) for this 
Federal Register document. The general policy for comments and other 
submissions from members of the public is to make these submissions 
available for public viewing on the Internet at http://www.regulations.gov as they are received without change, including any 
personal identifiers or contact information.

FOR FURTHER INFORMATION CONTACT: Tina-Marie Buckman at (703) 699-0105 
or by e-mail at tina-marie.buckman@osd.mil.

SUPPLEMENTARY INFORMATION: This Pilot Program (``Pilot'') is authorized 
by section 1110 of the NDAA for FY2010 (Pub. L. 111-84). Section 1110 
authorizes DoD Components to assign an exceptional IT employee to a 
private sector organization for purposes of training, development and 
sharing of best practices. It also gives DoD Components the authority 
to accept comparable IT employees on an assignment from the private 
sector for the training and development purposes and sharing of best 
practices and insight of government practices. DoD is proposing the 
addition of a new Part 241, to title 32 of the Code of Federal 
Regulations (CFR), entitled ``Pilot Program for the Temporary Exchange 
of Information Technology Personnel,'' to implement the Pilot 
authorized by Section 1110. This Pilot will be referred to as the 
Information Technology Exchange Program (ITEP). The Assistant Secretary 
of Defense (Networks & Information Integration)/Department of Defense 
Chief Information Officer (ASD(NII)/DoD CIO) is responsible for 
administration of ITEP Pilot. Heads of DoD Components have 
responsibility for implementation of the Pilot. As required by NDAA 
FY2010, an annual reporting requirement on activities carried out for 
this information technology exchange program is required to be 
submitted to the defense congressional committees.

a. Executive Order 12866, ``Regulatory Planning and Review''

    Under Executive Order 12866, ``Regulatory Planning and Review,'' 58 
FR 51735 (Oct. 4, 1993), a ``significant regulatory action'' is subject 
to Office of Management and Budget (OMB) review and the requirements of 
Executive Order 12866. Section 3(f) of the Executive Order defines 
``significant regulatory action'' as one that is likely to result in a 
rule that may:
    (1) Have an annual effect on the economy of $100 million or more, 
or may adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local or tribal governments or communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs, or the rights and obligations of 
recipients thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    This rule is substantive, non-significant regulatory action under 
section 3(f) of Executive Order 12866. OMB has reviewed this rule.

b. Section 202, Public Law 104-4, ``Unfunded Mandates Reform Act''

    It has been certified that 32 CFR part 241 does not contain a 
Federal mandate that may result in expenditure by state, local and 
tribal governments, in aggregate, or by the private sector, of $100 
million or more in any one year.

c. Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)

    It has been certified that 32 CFR part 241 is not subject to the 
Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if 
promulgated, have a significant economic impact on a substantial number 
of small entities.

d. Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 
35)

    It has been certified that 32 CFR part 241 does not impose 
reporting or recordkeeping requirements under the Paperwork Reduction 
Act of 1995.

e. Executive Order 13132, ``Federalism''

    It has been certified that 32 CFR part 241 does not have federalism 
implications, as set forth in Executive Order 13132. This rule does not 
have substantial direct effects on:
    (1) The States;
    (2) The relationship between the National Government and the 
States; or
    (3) The distribution of power and responsibilities among the 
various levels of Government.

List of Subjects in 32 CFR Part 241

    Government employees, information technology.

0
Accordingly, 32 CFR part 241 is added to read as follows:

PART 241--PILOT PROGRAM FOR TEMPORARY EXCHANGE OF INFORMATION 
TECHNOLOGY PERSONNEL

Sec.
241.1 Purpose.
241.2 Definitions.
241.3 Assignment authority.
241.4 Eligibility.
241.5 Written agreements.
241.6 Length of assignments.
241.7 Termination.
241.8 Terms and conditions.
241.9 Costs and reimbursements.
241.10 Small business consideration.
241.11 Numerical limitation.
241.12 Reporting requirements.
241.13 Implementation.

    Authority:  Pub. L. 111-84, section 1110, October 28, 2009.

Sec.  241.1  Purpose.

    (a) The purpose of this part is to implement section 1110 of the 
National Defense Authorization Act for Fiscal Year 2010 (Pub. L. 111-
84), which authorizes DoD to implement a Pilot Program for the 
Temporary Exchange of Information Technology (IT) Personnel. This 
statute authorizes the temporary assignment of IT employees between DoD 
and private sector organizations. This statute also gives DoD the 
authority to accept private sector IT employees assigned under the 
Pilot. This Pilot is referred to as the Information Technology Exchange 
Program (ITEP).
    (b) Heads of DoD Components may approve assignments as a mechanism 
for improving the DoD workforce's competency in using IT to deliver 
government information and services. Heads of DoD Components may not

[[Page 77755]]

make assignments under this part to circumvent personnel ceilings, or 
as a substitute for other more appropriate personnel decisions or 
actions. Approved assignments must meet the strategic program goals of 
the DoD Components. The benefits to the DoD Components and the private 
sector organizations are the primary considerations in initiating 
assignments; not the desires or personal needs of an individual 
employee.

Sec.  241.2  Definitions.

    In this part:
    Assignment means the detail of a DoD employee to a private sector 
organization without a change of position; or the assignment of a 
private sector employee to a DoD Component without a change of 
position.
    DoD employee means a Federal civilian employee of the DoD.
    Exceptional employee for the purposes of this pilot means an 
employee who demonstrates unusually good performance which is 
consistently better than expected at the fully successful level or 
above. Performance meets or exceeds all standards established at the 
fully successful level or above and makes significant contributions 
towards achieving the organizational goals.
    Information technology (IT) as defined in section 11101 of title 
40, U.S.C. includes computers, ancillary equipment (including imaging 
peripherals, input, output, and storage devices necessary for security 
and surveillance), peripheral equipment designed to be controlled by 
the central processing unit of a computer, software, firmware and 
similar procedures, services (including support services), and related 
resources.
    Information Technology Management (ITM) means the planning, 
organizing, staffing, directing, integrating, or controlling of 
information technology, including occupational specialty areas such as 
systems administration, IT project management, network services, 
operating systems, software application, cybersecurity, enterprise 
architecture, policy and planning, internet/web services, customer 
support, data management and systems analysis.
    Private sector organization means nonpublic or commercial 
individuals and businesses, nonprofit organizations, academia, 
scholastic institutions, and nongovernmental organizations.
    Small business concern means a business concern that satisfies the 
definitions and standards by the Administrator of the Small Business 
Administration (SBA) as defined by section 3703 (e)(2)(A) of title 5, 
U.S.C.

Sec.  241.3  Assignment authority.

    The Secretary of Defense may with the agreement, of the private 
sector organization concerned, arrange for the temporary assignment of 
an employee to such a private sector organization or from such a 
private sector organization to a DoD Component.

Sec.  241.4  Eligibility.

    (a) To be eligible for an ITEP assignment, a DoD or private sector 
employee must:
    (1) Work in the field of information technology management;
    (2) Be considered an exceptional employee;
    (3) Be expected to assume increased information technology 
management responsibilities in the future; and
    (4) Must be compensated at the GS-11 level or above (or the 
equivalent).
    (b) In addition to meeting the requirements of paragraph (a) of 
this section, the DoD employee must be serving under a career or 
career-conditional appointment or an appointment of equivalent tenure 
in the excepted service.
    (c) The private sector employee must meet citizenship requirements 
for Federal employment in accordance with 5 CFR 7.3 and 338.101, as 
well as any other statutory requirements. When a position requires a 
security clearance, the person must possess, or be able to obtain an 
appropriate security clearance.
    (d) Proposed assignment meets applicable requirements of section 
209(b) of the E-Government Act of 2002.

Sec.  241.5  Written agreements.

    (a) Before an assignment begins, the head of the DoD Component, 
private sector organization and the employee to be assigned to ITEP 
must sign a three-party agreement. Prior to the agreement being signed 
the relevant legal office for the DoD Component shall review and 
approve the agreement. The agreement must include, but is not limited 
to the following elements:
    (1) The duties to be performed and length of assignment;
    (2) An individual development plan describing the core IT 
competencies and technical skills that the detailee will be expected to 
enhance or acquire;
    (3) Identification of the supervisor of detailee.
    (b) The agreement shall require DoD employees, upon completion of 
the assignment serve in the civil service for a period equal to the 
length of the assignment; and
    (c) Provide that if the employee of the DoD or of the private 
sector organization (as the case may be) fails to carry out the 
agreement, such employee shall be liable to the United States for 
payment of all expenses of the assignment, unless that failure was for 
good and sufficient reason as determined by the Secretary of Defense.

Sec.  241.6  Length of assignments.

    (a) An assignment shall be for a period of not less than 3 months 
and not more than 1 year, and may be extended in 3-month increments for 
a total of not more than 1 additional year by heads of DoD Components 
and private sector organizations.
    (b) No assignment may commence after September 30, 2013, unless an 
individual began an assignment by September 30, 2013. This extension 
may be granted in 3-month increments not to exceed 1 year.

Sec.  241.7  Termination.

    An assignment may, at any time and for any reason be terminated by 
the DoD or the private sector organization concerned.

Sec.  241.8  Terms and conditions.

    (a) A DoD employee assigned under this part:
    (1) Remains a Federal employee without loss of employee rights and 
benefits attached to that status. These include, but are not limited 
to:
    (i) Consideration for promotion;
    (ii) Leave accrual;
    (iii) Continuation of retirement benefits and health, life, and 
long-term care insurance benefits; and
    (iv) Pay increases the employee otherwise would have received if he 
or she had not been assigned;
    (2) Remains covered for purposes of the Federal Tort Claims Act, 
and for purposes of injury compensation as described in 5 U.S.C. 
chapter 81; and
    (3) Is subject to any action that may impact the employee's 
position while he or she is assigned.
    (b) An employee of a private sector organization:
    (1) May continue to receive pay and benefits from the private 
sector organization from which such employee is assigned;
    (2) Is deemed to be an employee of the DoD for the purposes of:
    (i) Chapter 73 of title 5, United States Code (Suitability, 
Security, and Conduct);
    (ii) Sections 201 (Bribery of Public Officials and Witnesses), 203 
(Compensation to Members of Congress, Officers and Employees Against 
and Other Matters Affecting the Government) 205, (Activities of 
Officers and Employees in Claims Against Other

[[Page 77756]]

Matters Affecting the Government), 207 (Restrictions on Former 
Officers, Employees, and Elected Officials of the Executive and 
Legislative Branches), 208 (Acts Affecting a Personal Financial 
Interest), 209 (Salary of Government Officials and Employees Payable 
only by the United States), 603 (Making Political Contributions), 606 
(Intimidation to Secure Political Contributions), 607, (Place of 
Solicitation), 643 (Accounting Generally for Public Money), 654 
(Officer or Employee of the United States Converting Property of 
Another, 1905 (Disclosure of Confidential Information Generally), and 
1913 (Lobbying with Appropriated Moneys) of title 18, United States 
Code;
    (iii) Sections 1343, 1344, and 1349 (b) of title 31, United States 
Code;
    (iv) The Federal Tort Claims Act and any other Federal tort 
liability statute;
    (v) The Ethics in Government Act of 1978;
    (vi) Section 1043 of the Internal Revenue Code of 1986; and
    (vii) Section 27 of the Office of Federal Procurement Policy Act; 
and
    (3) May not have access to any trade secrets or to any other 
nonpublic information which is of commercial value to the private 
sector organization from which he or she is assigned;
    (4) Is subject to such regulations as the President may prescribe; 
and
    (5) Is covered by 5 U.S.C. chapter 81, Compensation for Work 
Injuries.
    (6) Does not have any right or expectation for Federal employment 
solely on the basis of his or her assignment.

Sec.  241.9  Costs and reimbursements.

    (a) Payment of salary and allowances. The lending organization (DoD 
or private sector organization) has full responsibility for payment of 
all salary and allowances to their employee participating in an ITEP 
assignment.
    (b) Business training and travel expenses. The engaging 
organization may pay for any business training and travel expenses 
incurred by the employee while on an ITEP assignment.
    (c) Prohibition. A private sector organization may not charge the 
DoD or any agency of the Federal Government, as direct or indirect 
costs under a Federal contract, for the costs of pay or benefits paid 
by that organization to an employee assigned to a DoD Component.

Sec.  241.10  Small business consideration.

    The ASD(NII)/DoD CIO on behalf of the Secretary of Defense shall:
    (a) Ensure that, of the assignments made each year, at least 20 
percent are small business concerns (as defined by 5 U.S.C. 
3703(e)(2)(A)).
    (b) Take into consideration the questions of how assignments might 
be used to help meet the needs of the DoD with respect to the training 
of employees in ITM.

Sec.  241.11  Numerical limitation.

    The ITEP Pilot is an opportunity for the exchange of knowledge, 
experience and skills between DoD and the private sector. The DoD has 
the flexibility to send their employees to the private sector or 
receive private sector employees, or participate in a one-for-one 
exchange. In no event may more than 10 employees participate in 
assignments under this section at any given time.

Sec.  241.12  Reporting requirements.

    (a) For each of fiscal years 2010 through 2015, the Secretary of 
Defense shall submit annual reports to the congressional defense 
committees, not later than 1 month after the end of the fiscal year 
involved, a report on any activities carried out during such fiscal 
year, including the following information:
    (1) Respective organizations to and from which an employee is 
assigned;
    (2) Positions those employees held while they were so assigned;
    (3) Description of the tasks they performed while they were so 
assigned; and
    (4) Discussion of any actions that might be taken to improve the 
effectiveness of the Pilot program, including any proposed changes in 
the law.
    (b) These reports will be prepared and submitted by ASD(NII)/DoD 
CIO in coordination with DoD Components participating in the pilot, to 
the appropriate congressional committees.

Sec.  241.13  Implementation.

    The ASD(NII)/DoD CIO is responsible for administering, coordinating 
and implementing the Pilot Program for the Temporary Exchange of 
Information Personnel, referred to as the Information Technology 
Exchange Program (ITEP). The ASD(NII)/DoD CIO will coordinate with DoD 
Components.

    Dated: December 7, 2010.
Patricia L. Toppings,
OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2010-31255 Filed 12-13-10; 8:45 am]
BILLING CODE 5001-06-P
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