This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

2757 

Vol. 74, No. 11 

Friday, January 16, 2009 

DEPARTMENT OF DEFENSE 

OFFICE OF PERSONNEL 

MANAGEMENT 

5 CFR Part 9901 

RIN 3206–AL75 

National Security Personnel System 

AGENCY: Department of Defense; Office 

of Personnel Management. 

ACTION: Final rule. 

SUMMARY: The Department of Defense 

(DoD) and the Office of Personnel 

Management (OPM) are issuing the final 

regulations adding subpart E, Staffing 

and Employment, to the National 

Security Personnel System (NSPS) 

regulations published in the Federal 

Register on September 26, 2008. NSPS 

is a human resources management 

system for DoD, authorized by the 

National Defense Authorization Act for 

Fiscal Year 2004, amended by the 

National Defense Authorization Act for 

Fiscal Year 2008 and the Duncan Hunter 

National Defense Authorization Act for 

Fiscal Year 2009. These final regulations 

govern staffing and employment under 

NSPS. 

DATES: This rule is effective March 17, 

2009. 

FOR FURTHER INFORMATION CONTACT: For 

DoD, Bradley B. Bunn, (703) 696–5604; 

for OPM, Charles D. Grimes III, (202) 

606–8079. 

SUPPLEMENTARY INFORMATION: On 

December 3, 2008, the Department of 

Defense (DoD or ‘‘the Department’’) and 

the Office of Personnel Management 

(OPM) published in the Federal 

Register at 73 FR 73606 a proposal to 

add staffing and employment provisions 

to the National Security Personnel 

System (NSPS or ‘‘the System’’), a 

human resources (HR) management 

system for DoD under 5 U.S.C. 9902, as 

enacted by section 1101 of the National 

Defense Authorization Act for Fiscal 

Year 2004 (Pub. L. 108–136, November 

24, 2003), and amended by section 1106 

of the National Defense Authorization 

Act for Fiscal Year 2008 (Pub. L. 110– 

181, January 28, 2008), and by section 

1106 of the Duncan Hunter National 

Defense Authorization Act for Fiscal 

Year 2009 (Pub. L. 110–417, October 14, 

2008). 

I. Staffing and Employment—5 CFR 

9901 Subpart E 

This subpart provides DoD with 

authority, pursuant to 5 U.S.C. 9902(i), 

to waive or modify certain provisions of 

title 5 U.S.C. and CFR pertaining to 

methods for recruitment for, and 

appointments to, NSPS positions and 

the methods for the assignment, 

reassignment, detail, transfer, and 

promotion of employees into and within 

NSPS. This subpart revises the subpart 

E found in the NSPS regulations 

published November 1, 2005 at 70 FR 

66116. The revisions reflect changes in 

NSPS authorized by amendments to 5 

U.S.C. 9902 by the National Defense 

Authorization Act for Fiscal Year 2008 

(Pub. L. 110–181) as further amended by 

the Duncan Hunter National Defense 

Authorization Act for Fiscal Year 2009 

(Pub. L. 110–417); provide specificity to 

the regulations based on existing 

implementation; reflect changes in 

subparts A through D of the regulations 

published on September 26, 2008; and 

make technical changes and 

improvements. 

In order to meet its critical mission 

requirements worldwide and respond to 

a dynamic national security 

environment, the Department needs 

flexibility to attract, recruit, assign and 

retain a high quality workforce. The 

current Federal hiring system does not 

have the flexibility needed by DOD to 

meet all of its mission requirements. 

Subpart E of the final regulations 

preserves merit principles and veterans’ 

preference requirements, while 

streamlining hiring and placement 

processes and providing DoD with 

flexible hiring tools to respond 

effectively to continuing mission 

changes and priorities and evolving 

labor markets. The public comment 

period ended on January 2, 2009. The 

following is a discussion of the 

comments received. 

II. Response to Public Comments 

A. Summary 

The proposed rule was published in 

the Federal Register on December 3, 

2008. In response to the proposed rule, 

the Department received 42 submissions 

during the 30-day public comment 

period. General comments fell into one 

of the following categories: collective 

bargaining and labor relations; 

publication date; fairness and equity; 

and whether the subpart implements too 

many or too few changes to staffing and 

employment procedures. Comments 

specific to staffing and employment fell 

into one of the following categories: 

Coverage of regulations; appointing 

authorities; probationary periods; 

competitive examining procedures; and 

internal placement. The 42 submissions 

included a total of 94 comments; 60 of 

those comments pertain to this subpart 

and are addressed below. We do not 

address the remaining comments 

because they concern other NSPS 

subparts published in 73 FR 56344, or 

do not relate to staffing and 

employment. 

B. General Comments 

1. Collective Bargaining and Labor 

Relations 

Labor organizations contended that 

various matters should be subject to 

collective bargaining under 5 U.S.C. 

chapter 71. As noted in the publication 

of the final regulations for subparts A 

through D of this part, published on 

September 26, 2008, collective 

bargaining obligations are governed by 

Federal statute. DoD is committed to 

fulfilling its obligation to bargain in 

good faith consistent with 

governmentwide labor relations law 

under 5 U.S.C. chapter 71 and the 

requirements of 5 U.S.C. 9902, as well 

as section 1106(b) of Public Law 110– 

181 and section 1106 of Public Law 

110–417. However, the Department 

seeks uniformity and consistency in its 

NSPS employment practices through 

issuance of regulations. 

2. Publication Date 

One commenter questioned the timing 

of our proposed regulations, stating that 

we should allow the new 

Administration to review NSPS before 

implementing this rule. A labor 

organization expressed concern that 

these regulations were published on 


sroberts on PROD1PC70 with RULES
2758 Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Rules and Regulations 

December 3rd, requiring anyone 

interested in commenting to use time 

during the holidays to do so. The 

proposed regulations, which add 

subpart E to subparts A through D of the 

final enabling regulations published on 

September 26, 2008, are authorized by 

both the National Defense Authorization 

Act (NDAA) for Fiscal Year 2008 and 

the Duncan Hunter National Defense 

Authorization Act for Fiscal Year 2009, 

which clarified the staffing and 

employment authorities originally 

granted under 5 U.S.C. 9902 by Public 

Law 108–136. When Congress enacted 

NDAA 2008 in January 2008, OPM and 

DoD began developing these regulations, 

which was eleven months prior to their 

December 3, 2008 publication. However, 

Congress did not enact NDAA 2009 

until October 14, 2008. The Department 

and OPM issued the proposed subpart E 

regulations less than two months after 

the NDAA 2009 became law. They were 

issued at that time to provide a 

complete regulatory structure for NSPS 

that reflects the most recent changes in 

law. 

3. Fairness and Equity 

Many commenters expressed 

concerns about the fairness and equity 

of the staffing and employment features 

of NSPS. These concerns were 

characterized by terms such as 

‘‘favoritism’’ and ‘‘cronyism’’ implying 

that the greater flexibility in decisionmaking under NSPS would result in 

hiring or placement decisions on a basis 

other than merit. 

A number of the fairness comments 

centered around the NSPS competitive 

examining flexibilities. For example, 

some commenters expressed concern 

regarding management’s ability to limit 

the area of consideration, when 

sufficient qualified applicants are 

available, to applicants in the local 

commuting area and other targeted 

recruitment sources, stating that these 

restrictions limit advancement 

opportunities for qualified candidates 

and prevent applicants who are willing 

to relocate from being considered for 

NSPS positions. They feared that 

management would use this flexibility 

to narrow the field of applicants to their 

favorites in order to select their 

‘‘employee of choice.’’ Two commenters 

pointed out that it will now be easier 

than ever for military leaders to hire and 

promote retiring military members who 

would otherwise face unemployment at 

the expense of faithful, loyal, honest, 

and deserving civilians. Another 

commenter stated that limiting the pool 

of qualified applicants does not make 

sense if the department intends to hire 

the most qualified candidate for the 

position. In response, we note that 

NSPS competitive examining 

procedures require acceptance of 

applications from all U.S. citizens, 

including current Federal employees. 

However, if there is a sufficient number 

of qualified applicants, initial 

consideration may be limited to 

candidates in the local commuting area 

and other targeted recruitment sources. 

In instances where the ease of filing an 

application or supply and demand 

forces generate a sufficient number of 

candidates, the ability to narrow the 

pool of applicants to be considered is 

necessary to streamline hiring 

processes. Streamlining hiring practices 

enables management to quickly fill 

positions and help ensure that the 

highest quality candidates are not lost to 

other employers due to length of time 

between the close of a job 

announcement and the job offer. This 

flexibility neither favors nor disfavors 

military members since all qualified 

applicants, whether civilian or military, 

in the local commuting area must be 

considered. Likewise, both civilian and 

military outside the local commuting 

area would equally be excluded from 

consideration. While organizations may 

limit the initial area of consideration, 

there is no requirement to do so. 

Apparent in many of the comments is 

the belief that the ability to narrow the 

area of consideration to the local 

commuting area would enable 

management to target ‘‘favorite’’ 

employees or friends or ‘‘cronies.’’ 

However, the regulations provide a 

safeguard against misuse of the smaller 

area of initial consideration. 

Specifically, the regulations require 

that, if sufficient qualified applications 

are not received from the local 

commuting area and other targeted 

recruitment sources, the area of 

consideration must be expanded to 

include all applicants for the vacancy. 

DoD will continue to comply with merit 

system principles and veterans’ 

preference when filling NSPS positions 

through NSPS competitive examining 

procedures. 

A number of fairness-related 

comments revolved around the 

alternative promotion procedures, an 

NSPS internal placement flexibility. 

Commenters stated that these 

procedures will narrow promotion and 

career advancement opportunities for 

NSPS employees and that their use will 

result in a supervisor’s favorite 

employee or crony being selected, 

ensuring that the Federal Government 

will turn into a ‘‘who you know club’’ 

that does not consider diversity or 

qualifications in the selection process. 

One commenter observed that absent a 

formal vacancy announcement, 

management would not be able to 

ensure that all employees are made 

aware of the opportunity for 

consideration. In other words, nothing 

would prevent management from 

singling out one or two favorite 

employees for consideration. With 

respect to consideration of 

qualifications in the selection process, 

under the alternative promotion 

procedures, the regulations require that 

employees selected meet qualification 

standards and either fall into the 

category of highly qualified or have 

received the highest level of 

performance rating for NSPS. While the 

regulations do not require formal 

advertisement (e.g., posting a job on 

USAJOBS), § 9901.516(c)(8) does require 

that employees be notified prior to use 

of alternative promotion procedures. 

Some methods that may be used include 

newsletters, bulletin boards, e-mail, and 

other forms of employee notification. 

Also, using alternative promotion 

procedures may not require employees 

to apply for positions. For example, the 

exceptional performance promotion 

procedure requires that all employees in 

the area of consideration be considered 

when their Level 5 rating of record is 

based on performance in the same 

occupational series and similar function 

as the vacancy being filled. Assessment 

boards may entail soliciting job 

experience information from employees 

in an organization or may simply be 

held in conjunction with or after the 

conclusion of the performance appraisal 

period. 

Another commenter expressed the 

belief that the alternative promotion 

procedures are not competitive and/or 

do not comply with merit system 

principles. They are consistent with 

merit system principles and with the 

merit promotion requirements of 5 CFR 

part 335. In fact, procedures similar to 

the alternative promotion procedures 

are currently used by some DoD 

Components to fill non-NSPS positions. 

We have included each of these 

procedures in the regulations because 

not all of these flexibilities are currently 

authorized for use within each DoD 

Component. Including them under the 

NSPS Merit Promotion Program 

provides NSPS managers uniform and 

consistent access to these flexibilities. In 

addition to notifying all employees that 

these forms of competition may be used, 

each of these procedures requires 

analysis of the job to be filled to identify 

the knowledge, skills, abilities, and/or 

competencies necessary to successfully 

perform the duties of the position; 


sroberts on PROD1PC70 with RULES
Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Rules and Regulations 2759 

clearance of applicable programs for 

displaced or surplus employees, such as 

the DoD Priority Placement Program and 

the Reemployment Priority List; 

determination that selectees meet 

applicable OPM or DoD qualification 

standards for the positions being filled; 

and, selection of candidates determined 

to be best qualified for the positions. 

The identification, qualification, 

evaluation, and selection of candidates 

must be made without regard to 

political, religious, or labor organization 

affiliation or nonaffiliation, marital 

status, race, color, sex, national origin, 

nonqualifying physical handicap, or 

age, and must be based solely on jobrelated criteria. These alternative 

promotion procedures streamline the 

standard vacancy announcement 

process. Streamlining the process 

permits management to fill positions 

quickly by identifying and selecting 

highly qualified candidates in a timely 

manner. 

Some commenters raised concerns 

about the exceptional performance 

promotion procedure which permits 

management to promote an employee 

whose most recent rating of record is 

Level 5 to a vacant position in the same 

occupational series (or related 

interdisciplinary/interoccupational 

series) and similar function as the 

position the employee held at the time 

he or she received the Level 5 rating. 

Commenters who objected to this 

procedure indicated they consider the 

NSPS pay pool process to be faulty. 

Commenters stated that the NSPS 

performance system is ‘‘far too 

subjective’’ and employees who perform 

at the Level 4 or Level 5 will never be 

considered for the exceptional 

performance promotion because ratings 

are forced down in a quota-like manner 

to Level 3. Another commenter 

suggested that using a severely flawed 

performance system’s appraisals as a 

tool for selection undermines EEO and 

merit system principles. 

As described in 5 CFR part 9901, 

subparts C and D, the pay pool process 

employs a number of checks and 

balances to ensure that employees who 

perform similar categories of work are 

measured consistently and that multiple 

levels of review occur. In addition, 

should a written justification not 

support a recommended rating of 

record, the Pay Pool Panel must afford 

the rating official an opportunity to 

provide further justification for the 

recommendation prior to adjusting the 

rating. This mechanism reinforces 

equity across and within pay pools and 

is a necessary safeguard when 

rewarding performance from a shared 

pay pool. Because supervisors may 

interpret performance criteria 

differently, pay pools reconcile ratings 

to ensure the criteria are applied 

consistently throughout a pay pool in 

order to provide equity and fairness of 

ratings. Further, NSPS regulations 

strictly prohibit a forced distribution of 

ratings. NSPS performance criteria also 

make clearer distinctions in levels of 

performance, assess employee 

performance more rigorously, and set a 

higher bar for higher-level performance, 

ensuring that only the most highly 

performing employees achieve a Level 5 

rating of record. Consequently, the 

NSPS performance management criteria 

often result in a different rating 

distribution than found under other 

performance management systems. It is 

precisely because of the rigor of the 

NSPS performance rating process and 

criteria that there is equity in NSPS 

performance ratings and distinctions in 

levels of performance. This rigor and 

these thoughtfully crafted performance 

criteria result in a small, distinguished 

group of high performers rated at the 

Level 5 NSPS rating level. As a result, 

a selectee from this pool of candidates 

has a record of proven performance, as 

demonstrated by award of the highest 

rating possible. Such an employee has 

demonstrated, through day-to-day 

performance that he or she possesses the 

applicable knowledge, skills, abilities 

and/or competencies to perform the 

duties of the vacant position in an 

exemplary manner. 

In addition to the reconciliation 

process that takes place within the pay 

pool, NSPS has implemented numerous 

rules to guard against arbitrary 

performance rating decisions, enabling 

employees to challenge or seek review 

of key decisions and setting up 

accountability mechanisms to ensure 

that employees are treated fairly. 

Use of the exceptional performance 

promotion procedure is not required; 

however, should management choose to 

utilize this procedure, the mechanisms 

and safeguards built into the NSPS 

performance appraisal and evaluation 

process ensure that only the highest 

performing employees receive a Level 5 

rating. 

Another commenter suggested that 

promoting employees based on only 

‘‘one good rating regardless of 

experience’’ is not responsible and that 

promotions should award those with a 

‘‘proven track record of exceptional 

performance.’’ While only those with an 

exceptional performance rating can be 

considered through this procedure, 

selections are made based on factors in 

addition to the rating, such as 

experience, education, training, 

knowledge, skills, abilities, 

competencies and other appropriate 

information consistent with merit 

system principles. 

4. Sufficient/Insufficient Change 

Some commenters objected to waiving 

and/or modifying the various provisions 

of title 5, stating that current hiring 

flexibilities were sufficient. They also 

stated that the Department has not 

demonstrated why changes are needed 

in the staffing and employment areas or 

how these proposals would result in a 

less cumbersome or fairer hiring 

process. Another commenter suggested 

that our proposals do not provide 

enough hiring flexibilities. Yet another 

commenter applauded the streamlining 

of the direct hire authority approval 

process. The enabling legislation (5 

U.S.C. 9902(i)) permits the Department 

to waive or modify specified sections of 

title 5 U.S.C. and CFR, essential to the 

development and implementation of a 

flexible system for hiring and assigning 

employees. NSPS staffing and 

employment flexibilities were designed 

and developed through a formal and 

rigorous process in coordination with 

OPM. The flexibilities strike a balance 

between enhancing the Department’s 

ability to accomplish its many missions 

and preserving compliance with 

essential important civil service 

protections such as merit system 

principles and veterans’ preference 

requirements. When a position is filled 

through the competitive examining 

process, we have provided the ability to 

limit the area of consideration to 

candidates in the local commuting area 

and other targeted recruitment sources 

in cases where sufficient qualified 

candidates are available. The 

regulations also provide the capability 

to convert non-permanent employees to 

permanent appointments in the 

competitive service provided certain 

requirements are met; provide flexibility 

for longer periods of temporary, term, 

and time-limited appointments; and 

provide alternative promotion 

procedures for internal placement 

actions. We are cognizant of the 

requirement to fully inform and train 

supervisors, managers, and human 

resources personnel regarding the 

various NSPS flexibilities so that they 

will be understood and used to the 

fullest advantage. We believe the 

identified flexibilities are sufficient at 

this time. However, if after a period of 

operation and evaluation of the benefits 

provided by the new flexibilities, we 

determine that other enhancements 

would be beneficial, we will explore 

additional regulatory authorities for 

hiring and assigning employees to meet 

critical national security missions. 


sroberts on PROD1PC70 with RULES
2760 Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Rules and Regulations 

C. Specific Comments 

1. Coverage 

A commenter noted that the proposed 

rule indicates that the regulations will 

apply to all DoD employees determined 

by the Secretary to be covered under 

§ 9901.102(b). However, the commenter 

points out that the section speaks 

specifically to coverage determinations 

for subparts B through D of the NSPS 

regulations issued in 73 FR 56344 and 

recommends that § 9901.503 be 

amended to specifically address subpart 

E. We agree with this recommendation 

and have modified the regulations to 

reflect this change. 

2. Appointing Authorities 

Competitive and excepted appointing 

authorities. Section 9901.511 authorizes 

the Secretary to continue using excepted 

and competitive appointing authorities 

under 5 U.S.C. chapter 33, 

Governmentwide regulations, Executive 

orders, and other statutes. Individuals 

hired under these authorities will be 

designated as career, career conditional, 

term, temporary, or time-limited 

employees, as appropriate. 

A commenter asked if the provision 

for Schedule A hiring of the disabled is 

still in place. Yes; under NSPS, 

activities may continue to use the 

Schedule A hiring authority to appoint 

persons with disabilities to NSPS 

positions. 

Several commenters requested 

clarification on the inclusion of career 

conditional appointments in NSPS. 

Previously, Public Law 108–136 

permitted NSPS to establish its own 

workforce shaping rules. These rules 

did not make distinctions in tenure 

between permanent employees for the 

purpose of employee retention. 

Consequently, there was no need for a 

career conditional tenure at that time. 

However, Public Law 110–181 requires 

NSPS reductions in force (RIF) to 

comply with the Governmentwide 

regulations appearing at 5 CFR part 351. 

Under those regulations, the assignment 

of a specific tenure group is directly 

related to an employee’s retention 

standing and it is necessary to have 

appointment types (career conditional 

and career) that align with the 

Governmentwide tenure group 

definitions to apply RIF procedures. 

A commenter disagreed with the 

definition of career employee. 

Specifically, the commenter stated that 

the rule appears to take an employee 

who is currently ‘‘a career employee’’ 

after completing a 1-year probationary 

period and increase the requirement to 

3 years. Under the current NSPS rules, 

an employee who receives a permanent 

appointment is immediately considered 

a career employee and does not serve 

any ‘‘conditional’’ period. The initial 

probationary period requirement is a 

separate requirement. Under this final 

rule, a ‘‘career employee’’ is defined as 

‘‘an individual appointed without time 

limit to a competitive service position in 

NSPS who has served 3 years of 

substantially continuous service as 

described in 5 CFR 315.201(b).’’ This 

definition requires that an employee’s 

initial permanent appointment to an 

NSPS position in the competitive 

service be a conditional appointment 

and upon completion of the 3-year 

conditional period he or she be 

designated as career, unless the 

employee has previously completed a 

3-year conditional service period in 

accordance with 5 CFR 315.201(b). Any 

NSPS employee on a career 

appointment in the competitive service 

who has not completed 3 years of 

substantially continuous service at the 

time these regulations become effective 

must be converted to a conditional 

appointment until the 3-year 

requirement is met. Time already served 

under an NSPS career appointment 

counts toward completion of the 

conditional period. No change was 

made to the regulations based on this 

comment. 

Another commenter asked if NSPS 

employees who are career employees 

will be grandfathered in and remain 

career employees. It depends. On the 

effective date of the final regulations, 

NSPS employees on career 

appointments in the competitive service 

who do not meet the § 9901.504 or 5 

CFR part 315 definition of career 

employee will be converted to a career 

conditional appointment. Time already 

served as a career employee under 

NSPS, as well as creditable time under 

5 CFR 315.201, will count toward 

completion of the 3-year career 

conditional period. NSPS employees 

who meet the above-mentioned 

definitions will remain career 

employees. 

Several commenters stated that it is 

unclear whether or not both career and 

career conditional appointments in 

NSPS have the same stature as those 

types of appointments in non-NSPS 

positions throughout the Federal 

Government, i.e., whether a former 

NSPS appointee would have 

reinstatement eligibility under 5 CFR 

315.401. Yes, both career and career 

conditional employees within NSPS 

have the same ‘‘stature’’ as non-NSPS 

career or career conditional employees 

and a former NSPS appointee would 

have reinstatement eligibility under 5 

CFR 315.401. Another commenter 

questioned whether NSPS service is 

creditable toward career tenure in a 

non-NSPS position under 5 CFR 

315.201(b)(1)(i) through (xix). Yes, 

service under career and career 

conditional appointments in NSPS 

competitive service positions is 

creditable in the same manner and to 

the same extent as service under the 

same type of appointments in non-NSPS 

positions. To minimize confusion 

regarding the creditability of NSPS 

service under career and career 

conditional appointments, additional 

guidance will be provided in 

implementing issuances. 

A labor organization representative 

suggested that OPM should review the 

regulations in light of a recent court 

decision concerning veterans’ 

preference. We have not revised the 

regulations in response to this comment. 

After further review of the regulatory 

text, we conclude that these regulations 

fully comply with applicable veterans’ 

preference requirements. 

Severe shortage/critical need hiring 

authority (direct hire authority). This 

section authorizes the Secretary to 

determine when a severe shortage or 

critical hiring need exists. A labor 

organization representative expressed 

concern that the Secretary, rather than 

OPM, has the authority to authorize 

direct hire authority for positions 

determined to have a severe shortage of 

qualified applicants or where there is a 

critical need. The representative stated 

that OPM should not abandon its role as 

a monitor of agency actions to ensure 

that merit principles are not violated 

and that no prohibited personnel 

practices take place, asserting that 

letting DoD develop its own appointing 

authorities runs the risk of creating 

opportunities for inequities, 

discrimination, and abuse and threatens 

the credibility of the system for 

employees. By design, and in keeping 

with the statutory objective of 

establishing a flexible system, these 

regulations give DoD considerable 

authority within the regulatory 

framework to design staffing and 

employment features. When the 

Secretary determines a severe shortage 

or critical hiring need exists, it is done 

using the same criteria that OPM uses 

under 5 CFR part 337. Also, OPM 

continues to have a role in overseeing 

the civil service system and in advising 

the President on civil service matters, 

including matters covered by these 

regulations. We believe the coordination 

and approval roles as defined in 

§ 9901.105 allow OPM sufficient 

opportunity to fulfill its responsibilities. 

Requiring OPM approval for every 

action would undermine the intent to 


sroberts on PROD1PC70 with RULES
Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Rules and Regulations 2761 

create a flexible system, especially when 

the action is in response to a timesensitive national security matter or 

critical need, which DoD is in the best 

position to assess. As a result, we have 

not revised the language in this section 

in response to these comments. 

Non-permanent appointing 

authorities. This section authorizes the 

Secretary to make temporary and term 

appointments to NSPS positions in the 

competitive service and temporary and 

time-limited appointments to NSPS 

positions in the excepted service. It 

prescribes extended timeframes for such 

appointments and provides a 

mechanism for the noncompetitive 

conversion of certain nonpermanent 

employees to career conditional or 

career appointments in the competitive 

service, provided specific requirements 

are met. A labor organization 

representative objected to the extended 

timeframe for term appointments in the 

competitive service and asserted that 

some of the situations the regulations 

state as reasons for term appointments 

more appropriately justify a permanent 

appointment. The commenter stated 

that there is no good justification for 

extending the timeframe of term 

appointments for a longer period than 

Governmentwide regulations allow and 

that the primary justification for doing 

so seems to be to bring these employees 

on board through term appointment 

procedures and then convert them to 

competitive non-term appointments. We 

have not revised the regulations in 

response to these comments. Extended 

timeframes for term appointments 

provide a valuable tool to the 

Department for accomplishing its many 

mission requirements of a time-limited 

nature. Extended time limits for such 

appointments are essential in an 

organization driven by knowledge-based 

and other skills requirements that are 

difficult to attract and retain on a 

temporary basis. We also recognize that 

situations and/or work that are initially 

time-limited in nature may, in fact, 

evolve into permanent work. The ability 

to convert term employees to permanent 

appointments minimizes disruption 

while permitting the Department to 

retain a valued employee who has, in 

fact, gone through a competitive process 

and met additional requirements prior 

to conversion to a permanent position. 

For example, the first condition for 

conversion to a permanent appointment 

is that the employee be selected for the 

non-permanent appointment under 

NSPS competitive examining 

procedures from a vacancy 

announcement that includes 

information to all applicants about the 

possibility of noncompetitive 

conversion. Further, the employee must 

have completed at least 2 years of 

continuous service at Level 3 (Valued 

Performer) or better and be converted to 

a career conditional or career position in 

the same pay schedule and band for 

which initially hired. 

3. Probationary Periods 

Section 9901.512 describes 

requirements for serving and 

successfully completing probationary 

periods upon appointment to an NSPS 

position in the competitive or excepted 

service or upon initial appointment to a 

supervisory position. 

A labor organization representative 

expressed concern that the regulations 

could be read as requiring no less than 

1 year. Section 9901.512(a)(3) clearly 

identifies the length of the probationary 

periods and does not intend the time 

period of 1 year to be interpreted as a 

minimum time period as feared by the 

commenter. Another commenter 

expressed concern that removing the 

ability of a supervisor to appeal being 

removed while on probation ‘‘assures 

that all supervisors will learn to be yesmen.’’ This assertion has no basis. The 

NDAA for 2008 brought NSPS under 

certain Governmentwide rules, 

including the right of employees to 

appeal an adverse action such as 

removal from Federal employment. 

Additionally, § 9901.512(b)(2)(i) retains 

the same protection afforded under 

General Schedule that an employee who 

does not satisfactorily complete a 

probationary period is entitled to be 

assigned to a position at a grade or pay 

band and pay no lower than that held 

before assignment to the supervisory 

position. This protection coupled with 

the ability to remove the employee from 

the supervisory position balances the 

organization’s need to ensure the 

capability of supervisory personnel 

while providing safeguards to the 

employee who fails his or her 

supervisory position. No change has 

been made to the regulations based on 

these comments. 

A commenter questioned the 

provisions at §§ 9901.512(a)(4) and 

9901.512(b)(1)(iii), which require that 

time spent in a non-pay status in excess 

of one workday during the probationary 

period (both initial and supervisory) 

extend the probationary period by an 

equal amount of time. These provisions 

are intended to allow management the 

full period to observe an employee’s onthe-job performance and enable a 

manager to remove the employee 

without undue restriction. However, we 

have reviewed this provision in light of 

the requirements of 5 U.S.C. chapter 75 

(which provides appeal rights to 

competitive service employees and 

preference eligible excepted service 

employees after 1 year and excepted 

service employees other than preference 

eligibles after 2 years) and have 

determined that this provision does not 

result in the intended goal. Therefore, 

we have revised the regulations to 

reflect an allowable absence in a nonpay status consistent with the 

provisions for non-NSPS employees 

covered under 5 CFR part 315, subpart 

H. 

A labor organization representative 

suggested that the regulations clarify 

under § 9901.512(a)(4)(ii) that if an 

employee is successful on appeal in 

overturning a separation for 

performance or conduct, all time served 

in the initial probationary period must 

be restored and credited toward 

completion of the probationary period. 

Insofar as a separation is overturned, it 

ceases to exist. Therefore, the 

regulations provide sufficient clarity on 

this point. No change was made to the 

regulations based on this comment. 

A commenter requested clarification 

regarding the length of the probationary 

period for preference eligibles with 

appeal rights. The commenter also 

suggested adding information to the 

regulations to address the limited 

appeal rights of Veterans’ Recruitment 

Appointment appointees terminated 

during the initial probationary period. 

We agree and have modified the 

regulations accordingly. 

A commenter questioned whether 

completion of a supervisory 

probationary period in a different 

Federal position would be creditable for 

an NSPS position. The regulations have 

been modified to state that the prior 

completion of the supervisory 

probationary period under these 

circumstances is creditable. 

A commenter noted that the 

regulations require a supervisory 

probationary period and questioned 

whether a probationary period is 

required for an employee appointed to 

a managerial position. No change was 

made to the regulations based on this 

comment. NSPS does not require a 

managerial probationary period, since 

not all managerial positions have 

responsibility over subordinate 

positions. Consequently, a managerial 

position that is not titled and coded as 

supervisory is not subject to a 

probationary period. 

4. Competitive Examining Procedures 

Section 9901.515 provides DoD the 

authority to use competitive examining 

procedures to appoint applicants to 

career, career conditional, term, and 


sroberts on PROD1PC70 with RULES
2762 Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Rules and Regulations 

temporary appointments in the 

competitive service and provides that 

the Secretary will issue uniform 

policies, procedures, and guidance 

concerning competitive examining for 

NSPS positions. This section also 

discusses public notice requirements 

and the use of numerical rating and 

ranking procedures and alternative 

ranking and selection procedures 

(category rating). It retains OPM’s 

authority to grant or deny a pass-over 

request of a preference eligible with a 

compensable service-connected 

disability of 30 percent or more as well 

as to make medical qualifications 

determinations pertaining to preference 

eligibles. 

Under NSPS, DoD must accept 

applications from all U.S. citizens, 

including current Federal employees, 

for positions announced using 

competitive examining procedures. If 

sufficient qualified applicants are 

available, applicants from the local 

commuting area and other targeted 

recruitment sources may be considered 

first. A commenter recommended that 

we define what ‘‘sufficient’’ qualified 

candidates means and that we include 

a requirement for the agency to publicly 

disclose the total number of 

applications considered versus the total 

number of applications received. We 

disagree that the term needs further 

definition. The term is relative. 

Sufficiency depends on the specifics of 

each recruitment action, including the 

number of vacancies, the labor market 

and the type and level of position to be 

filled. These various factors all 

contribute to ensuring that there are a 

multiple number of quality choices from 

which to select. In response to the 

comment that we include a requirement 

to publicly disclose the number of 

applications considered versus the total 

number received, we note that 

Governmentwide rules do not require a 

similar disclosure, and we see no useful 

purpose served by this request. 

However, this information is available 

in the case file generated for each 

selection and is subject to internal 

review and audit as well as review by 

OPM. 

A commenter noted that, under the 

numerical rating and ranking 

procedures (one of the methods for 

determining which applicants will be 

referred to the selecting official), the 

‘‘rule of 3’’ should apply. We disagree. 

Under NSPS, DoD has waived chapter 

33 of title 5 of the U.S.C., which among 

other things, mandates the rule of three. 

By waiving this statutory provision, 

DoD is able to broaden the pool of 

candidates from which to select and 

provide flexibility to acquire a 

workforce tailored to its needs. No 

change was made based on this 

comment. 

5. Internal Placement 

Section 9901.516 prescribes 

procedures regarding the assignment, 

reassignment, reinstatement, detail, 

transfer, and promotion of individuals 

or employees into or within NSPS. This 

section addresses level of work 

determinations for determining when an 

action is competitive or noncompetitive; 

contains information related to detailing 

NSPS employees; and describes the 

NSPS Merit Promotion Program, 

including competitive actions and 

exceptions to competition, alternative 

promotion procedures, grievances, and 

maintaining records for each promotion 

to a competitive service position filled 

through internal competitive 

procedures. 

A labor organization representative 

observed that the definitions in 

§ 9901.103 of ‘‘reassignment’’ and 

‘‘reduction in band’’ are brief and do not 

contain enough detail to enable 

managers to make level of work 

determinations or to determine whether 

an action will be competitive or 

noncompetitive. The definitions the 

representative refers to appear in the 

NSPS regulations published on 

September 26, 2008. These definitions, 

while brief, are quite specific. A 

reassignment is described as a move to 

a different position or set of duties in 

the same or comparable pay band, and 

a reduction in band is described as a 

move from one pay band to a lower pay 

band while continuously employed. The 

definitions also describe when 

reassignment and reduction in band are 

appropriate for moves from positions 

outside of NSPS to a NSPS position. The 

definitions are further supplemented by 

definitions for comparable pay band or 

level of work and lower pay band or 

level of work. These additional 

definitions clarify that reassignment and 

reduction in band are based on level of 

work determinations inherent in the 

NSPS classification structure. The 

relationship of pay bands in the NSPS 

classification architecture and 

information on level of work 

determinations for moves from non 

NSPS positions to NSPS is described in 

the NSPS Classification and 

Qualification implementing issuances. 

Consequently, no change was made to 

the regulations based on this comment. 

A labor organization representative 

stated that the NSPS definition of 

‘‘promotion’’ is more concrete than the 

definitions of ‘‘reduction in band’’ and 

‘‘reassignment.’’ The representative 

observed that, with pay bands, 

promotions are less frequent than they 

are under the GS system, meaning that 

far more mobility will take place as 

movement within a band. The 

representative expressed concern that 

movements within a pay band, or 

‘‘reassignments,’’ may involve an 

increase in base pay normally reserved 

for promotions under the GS system and 

that managers will be able to decide 

when to give a pay increase or whether 

to subject a movement to competition. 

They were particularly concerned that 

employees could be reassigned with pay 

increases and other employees would be 

given no notice or opportunity to 

compete. 

The definitions of reassignment and 

promotion differ among different 

personnel systems. NSPS is designed to 

be a modern, contemporary, flexible, 

and agile human resources management 

system intended to help DoD meet the 

national security challenges of the 21st 

century, while following core merit 

system principles and protections. The 

NSPS pay band recognizes a broader 

range of work than a General Schedule 

grade within a single pay band also 

known as one discrete level of work. 

Classification architectures utilizing a 

grade concept describe narrower ranges 

of work for a single discrete level of 

work. Consequently, where movements 

in a graded system would result in 

promotion pay, the same movement in 

a pay-banded system may constitute a 

reassignment. While pay progression in 

grade-based systems is primarily based 

on promotions, pay progression in the 

NSPS pay-banded system is primarily 

based on performance and secondarily 

on promotion movements. In 

appropriate situations, as documented 

and authorized by Component 

procedures, management may provide a 

discretionary base salary increase to 

provide an incentive to employees to 

broaden skill sets, take on more 

responsibilities, accept assignments that 

require relocation, etc. To preserve the 

competitive procedures for promotion, 

such increases are limited to an amount 

less than the minimum percentage 

increase permitted by promotion rules. 

Providing an increase in pay for a 

reassignment is not required and, where 

provided, may be predicated on specific 

case information (e.g., the employee’s 

salary in range, what skills the 

employee brings to the position). At the 

same time, the pay band structure 

recognizes that employees may be 

promoted to a position in a higher pay 

band containing a higher level of work. 

Consistent with merit promotion rules, 

promotion to a position in a higher pay 

band, or at a higher level of work, in the 


sroberts on PROD1PC70 with RULES
Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Rules and Regulations 2763 

competitive service requires 

competition. 

With respect to the comment 

regarding managers deciding when 

reassignments will require competition 

or not, or when a notice of the vacancy 

will be given, we note that, as with the 

GS system, many NSPS positions to 

which employees are reassigned are 

advertised; however, some are not. As 

under the GS system, some 

reassignments are done competitively to 

increase the applicant base. Some 

reassignments are also done 

competitively if the position to which 

the employee will be reassigned 

ultimately leads to a position in a higher 

full performance pay band (i.e., a higher 

level of work under the NSPS 

classification architecture). Whether a 

position is advertised or not, employees 

who are reassigned must be qualified for 

the position, unless they are reassigned 

as a result of reduction in force 

procedures and qualification 

requirements are waived. No change 

was made to these regulations based on 

this comment. 

A labor organization representative 

expressed concern that details could ‘‘go 

on forever’’ without documentation and 

that ‘‘a manager could pick a favorite 

employee for a desirable detail with no 

record of the action,’’ making it 

‘‘difficult if not impossible to track 

movement of employees in order to 

ensure that there is no prohibited 

discrimination.’’ In addition, the labor 

organization representative asked 

specifically about what documentation 

was required for a GS employee’s detail 

to an NSPS position. 

Consistent with Governmentwide 

regulations, NSPS does not impose a 

specific timeframe that limits flexibility 

in accomplishing work. A detail, 

however, is limited in that it involves 

the temporary assignment of an 

employee to another position or set of 

duties to perform work on a timelimited basis with the expectation that 

the employee will return to the 

permanent position of record upon 

expiration of the detail. NSPS does 

require documentation of some details, 

in that details to higher pay bands 

beyond 180 days are subject to 

competition. Management must evaluate 

the situation and determine the 

appropriate assignment of employees. In 

some cases, it may be better to 

temporarily promote an employee or fill 

a position on a permanent basis. 

The OPM Guide to Processing 

Personnel Actions provides technical 

guidance regarding when 

documentation is required for a GS 

employee’s detail. Documentation is not 

dependent on whether the employee is 

detailed to a different personnel system 

but on the duties assigned, the 

organization or agency to which 

assigned, length of the detail, and the 

grade of the position. Additional 

guidance regarding the conditions 

surrounding a detail requiring 

documentation is in chapter 14 of the 

Guide. 

A commenter asked for clarification of 

the exception to competition situation 

described at § 9901.516(e)(7), which 

permits a noncompetitive promotion to 

a higher pay band previously held on a 

permanent or term basis in the 

competitive service. The commenter 

asked that we make clear that holding 

a position on a term basis means on a 

term appointment, not a temporary 

promotion or temporary appointment. 

The commenter also suggested we state 

when the term appointment was held 

and for how long, to ensure consistency. 

Alternatively, the commenter suggested 

the regulations provide discretionary 

authority to Components to specify the 

conditions under which a term 

appointment could be used as the basis 

for a noncompetitive permanent action. 

Finally, the commenter noted that, 

during base realignment and closure 

and transformation efforts, term 

appointments and temporary 

promotions for extended periods are 

common and expressed concern that 

this provision seems to give an 

advantage to term applicants over 

permanent employees who have held a 

position in a higher pay band on a 

temporary basis for several years. We 

agree that this provision may be 

confusing and have deleted the words 

‘‘or term’’ from this paragraph. 

A labor organization representative 

expressed concern that the alternative 

promotion procedures bypassed 

competitive processes and merit 

principles creating ‘‘secret processes’’ to 

fill vacancies. Several commenters 

associated a formal vacancy 

announcement with competition, 

transparency and merit selection. The 

NSPS regulations on internal placement 

explicitly align with Governmentwide 

regulations by adopting the merit 

promotion requirements under 5 CFR 

335.103(b). These merit promotion 

requirements provide the foundation for 

a systemic means of selection according 

to merit. They include analysis of the 

job to be filled to identify the 

knowledge, skills, abilities, and/or 

competencies necessary to successfully 

perform the duties of the position; 

clearance of applicable programs for 

displaced or surplus employees, such as 

the DoD Priority Placement Program and 

the Reemployment Priority List; 

determination that the selectees meet 

applicable OPM or DoD qualification 

standards for the positions being filled; 

and, selection of candidates determined 

to be best qualified for the positions. 

Additionally, the identification, 

qualification, evaluation, and selection 

of candidates must be made without 

regard to political, religious, or labor 

organization affiliation or nonaffiliation, 

marital status, race, color, sex, national 

origin, nonqualifying physical 

handicap, or age, and must be based 

solely on job-related criteria. Employees 

selected under alternative promotion 

procedures have been judged on the 

recognized merit factors of 

qualifications and performance. 

Although formal advertisement is not 

required for selections under these 

procedures, the regulations require that 

employees are notified in advance of the 

intent to use these procedures. 

A labor organization representative 

asked how absent employees or those 

not physically present might receive 

consideration for positions through 

these alternative means. The absence of 

an employee does not preclude 

consideration under these procedures 

precisely because these procedures do 

not necessarily require an application 

from the employee. For example, all 

employees eligible and within the area 

of consideration will automatically 

receive consideration through the 

exceptional performance promotion 

procedure. Each Component will 

determine specific processes for each 

procedure, and should a Component 

request applications for any of these 

alternative methods, they will also 

explain the provision and conditions for 

considering those who are absent. 

However, we have amended 

§ 9901.516(e)(8) to clarify that when 

alternative promotion procedures are 

used, appropriate consideration must be 

given to employees within the area of 

consideration who are absent for 

legitimate reasons, (e.g., on detail, on 

leave, at training courses, in the military 

service, etc.). 

A labor organization representative 

asked specific questions regarding the 

execution of these alternative promotion 

procedures, including whether 

employees would be informed when 

specific jobs became available, whether 

employees would be informed of their 

ratings, whether employees could 

challenge their ratings, how employees 

would be informed of enough 

information to file a grievance if 

desired, and whether the rating 

outcomes would be available for 

potential grievance or EEO procedures. 

The goal of the alternative promotion 

procedures is to provide an efficient 

procedure for filling positions 


sroberts on PROD1PC70 with RULES
2764 Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Rules and Regulations 

competitively. While we have provided 

the framework and requirements for 

each alternative promotion procedure, 

Components will establish specific 

guidelines for their use of each 

alternative promotion procedure to be 

consistent with their merit promotion 

plans. It is important to emphasize that 

employing alternative promotion 

procedures does not negate merit 

promotion requirements. For example, 

like all other competitive procedures, 

case files will be kept for each position 

filled through these alternative 

procedures and will be made available 

for grievance and EEO purposes. In 

addition, Components will continue to 

provide necessary information to 

employees. 

A labor organization representative 

asked for clarification regarding who 

determines if the by-name request is 

ranked within the highest quality group. 

The competitive process requires 

measuring the candidate against the jobrelated criteria. If the candidate meets 

the rating factors required for the 

highest level, the candidate may be 

selected for the position. The human 

resources office determines whether a 

candidate is ranked within the highest 

quality group. 

Another commenter stated that the 

alternative promotion procedures may 

be used as a means of circumventing 

veterans’ preference, particularly the 

hiring of disabled veterans. The 

application of veterans’ preference is a 

requirement when conducting 

competitive examining, not in internal 

placement. The NSPS alternative 

promotion procedures are only used to 

place employees internally within the 

Department. NSPS upholds veterans’ 

preference in the competitive examining 

process. We have not revised the 

regulations in response to this comment. 

A labor organization representative 

questioned why the requirement to 

maintain internal placement files was 

based solely on the time frame of the 

grievance process and stated that this 

allowed ‘‘premature destruction’’ of 

records without considering the EEO 

process. The language regarding how 

long to maintain documents mirrors the 

language as it exists today for General 

Schedule employees in 5 CFR 

335.103(b)(5). Governmentwide 

experience to date has not indicated a 

need for extending the time period for 

retention of these records. NSPS does 

not change the procedures currently in 

place with respect to meeting EEO or 

veterans’ preference requirements. We 

have not changed the regulations in 

regard to these comments. 

III. Next Steps 

The National Defense Authorization 

Act for Fiscal Year 2008 requires that 

this rule be considered a major rule for 

the purpose of section 801 of title 5, 

United States Code. Consequently, 

before it can take effect, the Department 

will submit to each House of the 

Congress and to the Comptroller General 

a report containing the rule, a general 

statement relating to the rule, and the 

proposed effective date of the rule. The 

rule may not be effective until the date 

occurring 60 days after the later of (1) 

Congressional receipt of the report, or 

(2) the date the rule is published in the 

Federal Register. This rule is subject to 

the procedures set forth in 5 U.S.C. 801– 

808. 

E.O. 12866, Regulatory Review 

DoD and OPM have determined that 

this action is a significant regulatory 

action within the meaning of Executive 

Order 12866 because there is significant 

public interest in the National Security 

Personnel System. DoD and OPM have 

analyzed the expected costs and benefits 

of the revised HR system, and that 

analysis was presented in the 

supplementary information published 

with the rule on September 26, 2008 

(Volume 73 Number 188) on page 

56389. 

The primary benefit to the public of 

NSPS resides in the HR flexibilities that 

will enable DoD to attract, build, and 

retain a high-performing workforce 

focused on effective and efficient 

mission accomplishment. Staffing and 

employment regulations that streamline 

hiring processes provide additional 

hiring flexibilities which will result in 

a more qualified and proficient 

workforce and will generate a greater 

return on investment in terms of 

productivity and effectiveness. Taken as 

a whole, the changes included in these 

regulations will improve upon the 

original NSPS regulations and result in 

a contemporary, merit-based HR system 

that focuses on performance, generates 

respect and trust, and supports the 

primary mission of DoD. 

This rule has been reviewed by the 

Office of Management and Budget in 

accordance with E.O. 12866. 

Regulatory Flexibility Act 

DoD and OPM have determined that 

these regulations will not have a 

significant economic impact on a 

substantial number of small entities 

because they will apply only to Federal 

agencies and employees. 

Paperwork Reduction Act of 1995 (44 

U.S.C. Chapter 35) 

This final regulatory action will not 

impose any additional reporting or 

recordkeeping requirements under the 

Paperwork Reduction Act. 

E.O. 12988, Civil Justice Reform 

These regulations are consistent with 

the requirements of E.O. 12988. The 

regulations clearly specify the effects on 

existing Federal law or regulation; 

provides clear legal standards; has no 

retroactive effects; specifies procedures 

for administrative and court actions; 

defines key terms; and is drafted clearly. 

E.O. 13132, Federalism 

DoD and OPM have determined these 

regulations will not have Federalism 

implications because they will apply 

only to Federal agencies and employees. 

The regulations will not have financial 

or other effects on States, the 

relationship between the Federal 

Government and the States, or the 

distribution of power and 

responsibilities among the various 

levels of government. 

Unfunded Mandates 

These regulations will not result in 

the expenditure by State, local, or tribal 

governments of more than $100 million 

annually. Thus, no written assessment 

of unfunded mandates is required. 

List of Subjects in 5 CFR Part 9901 

Administrative practice and 

procedure, Employment, Government 

employees, Labor-management 

relations, Labor unions, Reporting and 

recordkeeping requirements, Wages. 

Office of Personnel Management. 

Michael W. Hager, 

Acting Director, Office of Personnel 

Management. 

Department of Defense. 

Gordon England, 

Deputy Secretary of Defense. 

■ Accordingly, under the authority of 

section 9902 of title 5, United States 

Code, the Department of Defense and 

the Office of Personnel Management are 

adding subpart E, part 9901, of title 5, 

Code of Federal Regulations, to read as 

follows: 

PART 9901—DEPARTMENT OF 

DEFENSE NATIONAL SECURITY 

PERSONNEL SYSTEM (NSPS) 

Subpart E—Staffing and Employment 

General 

Sec. 

9901.501 Purpose. 

9901.502 Scope of authority. 


sroberts on PROD1PC70 with RULES
Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Rules and Regulations 2765 

9901.503 Coverage. 

9901.504 Definitions. 

External Recruitment and Internal 

Placement 

9901.511 Appointing authorities. 

9901.512 Probationary periods. 

9901.513 [Reserved] 

9901.514 Non-citizen hiring. 

9901.515 Competitive examining 

procedures. 

9901.516 Internal placement. 

Authority: 5 U.S.C. 9902. 

Subpart E—Staffing and Employment 

General 

§ 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). 

§ 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 § 9901.101, the 

Secretary may prescribe implementing 

issuances to carry out the provisions of 

this subpart. 

§ 9901.503 Coverage. 

(a) At his or her sole and exclusive 

discretion, the Secretary may decide to 

apply this subpart to a specific category 

or categories of eligible civilian 

employees in organizations and 

functional units of the Department at 

any time in accordance with the 

provisions of 5 U.S.C. 9902. However, 

no category of employee may be covered 

by this subpart unless that category is 

also covered by subpart D of this part. 

(b) The following employees and 

positions in DoD organizational and 

functional units are eligible for coverage 

under this subpart: 

(1) Employees and positions who 

would otherwise be covered by 5 U.S.C. 

chapter 33 (excluding members of the 

Senior Executive Service); and 

(2) Such others designated by the 

Secretary as authorized under 5 U.S.C. 

9902. 

§ 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 § 9901.103. 

Detail means the temporary 

assignment, other than temporary 

reassignment or temporary promotion, 

of an employee to another position or 

set of duties with the expectation that 

the employee will return to the 

permanent position of record upon 

expiration of the assignment. For pay 

and benefits purposes and for the 

purpose of part 351 of this title, an 

employee continues to encumber the 

position from which the employee was 

detailed. 

Initial probationary period means the 

initial period of service immediately 

following an employee’s appointment to 

the competitive or excepted service, as 

specified in § 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 § 9901.103. 

Reassignment has the meaning given 

that term in § 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 § 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 § 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 § 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 § 9901.511(d). 

External Recruitment and Internal 

Placement 

§ 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, timelimited, or temporary appointments in 

the excepted service, as appropriate. 

The competitive appointing authorities 

under this paragraph are subject to the 

procedures in part 330 of this title, 

except for 5 CFR 330.208 and 330.501. 

(b) Additional appointing authorities. 

(1) The Secretary and the Director may 

enter into written agreements providing 

for new excepted and competitive 

appointing authorities for positions 

covered by the National Security 

Personnel System, including 

noncompetitive appointments, and 

excepted appointments that may lead to 

a subsequent noncompetitive 

appointment to the competitive service. 

(2) DoD and OPM will jointly publish 

a notice, and request comments, in the 

Federal Register when establishing a 

new competitive appointing authority or 

a new excepted appointing authority 

that may lead to a subsequent 

noncompetitive appointment to a 

competitive service position. 

(3) The Secretary will prescribe 

appropriate implementing issuances to 

administer a new appointing authority 

established under paragraph (b) of this 

section. 


sroberts on PROD1PC70 with RULES
2766 Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Rules and Regulations 

(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 § 9901.515. 

Public notice will be provided in 

accordance with 5 U.S.C. 3304(a)(3)(A). 

(2) For each specific authority, the 

Secretary will document the basis for 

the severe shortage or critical hiring 

need, consistent with 5 CFR 337.204(b) 

or 337.205(b), as applicable. 

(3) The Secretary may extend a direct 

hire authority if the Secretary 

determines there is or will continue to 

be a severe shortage of candidates or a 

critical hiring need for a particular 

position(s) as of the date the authority 

is due to expire. 

(4) The Secretary will terminate or 

modify a specific authority to make 

appointments under this section when it 

is determined that the severe shortage or 

critical need upon which the authority 

was based no longer exists. 

(5) The Secretary will notify OPM of 

determinations made under this 

paragraph. 

(d) Non-permanent appointing 

authorities. (1) The Secretary may 

authorize appointments with time limits 

in the competitive or excepted service, 

as appropriate, when the need for an 

employee’s services is not permanent. 

These appointments will be either 

temporary, term, or time-limited as 

defined below: 

(i) Temporary appointments. 

Temporary appointments are for a 

specified period not to exceed 1 year 

and may be made in either the 

competitive or the excepted service. A 

temporary appointment may be 

extended for 2 additional years, in 

increments not to exceed 1 year, to a 

maximum of 3 years. Temporary 

appointments may be made and 

extended to positions involving 

intermittent or seasonal work without 

regard to the maximum time limits. The 

circumstances under which a temporary 

appointment is appropriate include, but 

are not limited to: Filling a position to 

address a temporary workload peak or 

to complete a temporary project; 

meeting a temporary staffing need that 

is anticipated not to exceed a 1-year 

timeframe for reasons such as 

abolishment, reorganization, or 

contracting out of a function; 

anticipated reduction in funding; filling 

positions temporarily because the 

positions are expected to be needed for 

placement of permanent employees who 

would otherwise be displaced; or when 

the incumbent will be out of the 

position for a temporary period of time, 

but is expected to return. A temporary 

employee may be reassigned to another 

temporary position provided the total 

combined service under the temporary 

appointment does not exceed the 

maximum 3-year time limitation, the 

employee meets the qualification 

requirements of the position, and the 

conditions specific to the employee’s 

appointing authority are met. 

Temporary appointments are made as 

follows: 

(A) Competitive service. Temporary 

appointments to positions in the 

competitive service may be made using 

competitive procedures under 

§ 9901.515, using the severe shortage/ 

critical need hiring authorities 

described in § 9901.511(c), or by using 

direct hire authority procedures under 5 

CFR part 337, as appropriate. 

Temporary appointments to positions in 

the competitive service also may be 

made noncompetitively, consistent with 

5 CFR part 316, or by any 

noncompetitive appointing authorities 

granted to or by the Secretary. 

(B) Excepted service. Temporary 

appointments to positions in the 

excepted service are made under the 

procedures prescribed in 5 CFR part 

302. 

(ii) Term appointments in the 

competitive service. (A) Term 

appointments are in the competitive 

service and will be for a period of more 

than 1 year, but not to exceed 5 years. 

The term appointment may be extended 

by an authorized management official 

for 1 additional year to a maximum of 

6 years. The circumstances under which 

a term appointment is appropriate 

include, but are not limited to, project 

work, extraordinary workload, 

uncertainty of future funding, scheduled 

contracting out or abolishment of a 

function, the need to maintain 

permanent positions for placement of 

potential surplus employees, or when 

the incumbent will be out of the 

position for a significant period of time, 

but is expected to return. A term 

employee may be promoted, reassigned 

or reduced in band to another term 

position provided the total combined 

service under the term appointment 

does not exceed the maximum 6-year 

time limitation and the employee meets 

the qualification requirements of the 

position. 

(B) Term appointments may be made 

using competitive procedures under 

§ 9901.515, using the severe shortage/ 

critical need hiring authorities 

described in § 9901.511(c), or by using 

direct hire authority procedures under 5 

CFR part 337, as appropriate. Term 

appointments also may be made 

noncompetitively consistent with 5 CFR 

part 316 or by any noncompetitive 

appointing authorities granted to or by 

the Secretary. 

(iii) Time-limited appointments in the 

excepted service. Time-limited 

appointments are in the excepted 

service and will be for a period of more 

than 1 year. Time-limited appointments 

to positions in the excepted service are 

made under the procedures prescribed 

in 5 CFR part 302. A time-limited 

employee may be reassigned to another 

time-limited position in the excepted 

service provided the employee meets 

the qualification requirements of the 

position and the conditions specific to 

the appointing authority applicable to 

the employee. 

(2) Conversion to career conditional 

or career appointment. A nonpermanent 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 § 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 § 9901.515(b) 

and (c); 

(iii) The employee completed at least 

2 years of continuous service at Level 3 

(Valued Performer) or better; and 

(iv) The employee is converted to a 

career conditional or career position in 

the same pay schedule and band for 

which hired. 

(e) Tenure group. For reduction in 

force purposes, NSPS employees 

appointed to the competitive service are 

placed in one of the tenure groups 

defined in 5 CFR 351.501(b) or, if 

appointed to the excepted service, one 

of the tenure groups defined in 5 CFR 

351.502(b). 

§ 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 


sroberts on PROD1PC70 with RULES
Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Rules and Regulations 2767 

time-limited appointment in the 

excepted service under this part is 

required to complete a probationary 

period when the employee: 

(i) Is appointed from a competitive list 

of eligibles established under 

§ 9901.515, using the severe shortage/ 

critical need hiring authorities 

described in § 9901.511(c), or by using 

direct hire authority procedures under 5 

CFR part 337; or 

(ii) Is appointed to the competitive 

service either by special authority or by 

conversion under subpart F or G of 5 

CFR part 315, unless specifically 

exempt from probation by the authority 

itself; or 

(iii) Is reinstated, unless, during any 

period of service which affords a current 

basis for reinstatement, the employee 

completed an initial probationary 

period; or 

(iv) Is appointed to a position in the 

excepted service under the procedures 

prescribed in part 302 of this title. 

(2) An employee serving an initial 

probationary period at the time his or 

her permanent position is converted 

into NSPS, or at the time he or she is 

assigned from a non NSPS position to 

an NSPS position, or at the time he or 

she is reappointed through the DoD 

Priority Placement Program or 

Reemployment Priority List established 

under part 330 of this title after being 

involuntarily separated through no fault 

of the employee, will continue the 

probationary period; i.e., the 

probationary period does not start over. 

(3) The probationary period required 

by § 9901.512(a) is as follows: 

(i) Competitive service—1 year 

(ii) Excepted service— 

(A) 2 years for non-preference 

eligibles; 

(B) 1 year for preference eligibles. 

(4) Crediting Service. (i) Absence in an 

approved nonpay status while on the 

rolls (other than for compensable injury 

or military duty) is creditable up to a 

total of 22 workdays. 

(ii) Service during an initial 

probationary period from which an 

employee is separated for performance 

or conduct does not count toward 

completion of probation required under 

a subsequent NSPS appointment. 

(iii) The probationary period for parttime employees is computed on the 

basis of calendar time, in the same 

manner as for full-time employees. For 

intermittent employees, i.e., those who 

do not have regularly scheduled tours of 

duty, each day or part of a day in pay 

status counts as 1 day of credit toward 

the 260 days (actual ‘‘work days’’ in a 

year, excluding weekends) needed to 

complete the 1-year probationary 

period. The probationary period may 

not be completed in less than 1 year 

calendar time. 

(iv) Absence (whether on or off the 

rolls) due to compensable injury or 

military duty is creditable in full upon 

restoration to Federal service under part 

353 of this title. An employee serving a 

probationary period who leaves Federal 

service to become a volunteer with the 

Peace Corps or the Corporation for 

National and Community Services 

serves the remainder of the probationary 

period upon reinstatement, provided the 

employee is reinstated within 90 days of 

termination of service as a volunteer or 

training for such service. 

(5) Termination of probationers for 

unsatisfactory performance and/or 

conduct. 

When an authorized management 

official proposes to terminate a 

competitive service employee during his 

or her initial probationary period 

because his or her performance and/or 

conduct during this period fails to 

demonstrate his or her fitness or 

qualifications for continued 

employment, the official will follow 

procedures at 5 CFR 315.804. 

(6) Termination of probationers for 

conditions arising before appointment. 

When an authorized management 

official proposes to terminate a 

competitive service employee during his 

or her initial probationary or trial period 

for reasons based in whole or in part on 

conditions arising before the employee’s 

appointment, the official will follow 

procedures at 5 CFR 315.805. 

(7) Appeals. Under NSPS, a 

competitive service employee, who is 

terminated during the initial 

probationary period, will have limited 

appeal rights to the Merit Systems 

Protection Board (MSPB) under 5 CFR 

315.806. In addition, any individual 

serving under a Veterans Recruitment 

Appointment, whose employment 

under the appointment is terminated 

within 1 year after the date of such 

appointment, will have the same right to 

appeal that termination as a career or 

career conditional employee has during 

the first year of employment in 

accordance with 5 CFR 315.806. 

(b) Supervisory probationary period. 

Under NSPS, an employee is required to 

serve a probationary period upon initial 

appointment to a supervisory position. 

The supervisory probationary period is 

1 year. An employee serving a 

supervisory probationary period at the 

time his or her permanent position is 

converted into NSPS will continue the 

probationary period in the new position; 

i.e., the supervisory probationary period 

does not start over. 

(1) Crediting service toward 

completion of the supervisory 

probationary period. (i) An employee 

who is reassigned, transferred, 

promoted or reduced in band from one 

supervisory position to another while 

serving a supervisory probationary 

period is subject to the probationary 

period prescribed for the new position. 

Service in the former position is 

credited toward completion of the 

probationary period in the new position. 

(ii) Temporary service in a 

supervisory position prior to the 

supervisory probation when there is no 

break in service is creditable toward 

completion of a supervisory 

probationary period. This includes 

service on temporary promotion or 

reassignment to another supervisory 

position while serving a supervisory 

probation. Service in a nonsupervisory 

position is not creditable. 

(iii) Absence in an approved nonpay 

status while on the rolls (other than for 

compensable injury or military duty) is 

creditable up to a total of 22 workdays. 

(iv) Service during a supervisory 

probationary period from which an 

employee was separated or demoted for 

performance and/or conduct does not 

count toward completion of a 

supervisory probationary period 

required under a subsequent 

appointment. 

(v) Absence (whether on or off the 

rolls) due to compensable injury or 

military duty is creditable in full toward 

completion of a supervisory 

probationary period upon restoration to 

Federal service under part 353 of this 

title. 

(vi) An employee who has completed 

a supervisory probationary period prior 

to movement into an NSPS position is 

not required to complete another 

supervisory probationary period. 

(2) Failure to complete the 

supervisory probationary period. (i) 

Except as described in paragraph 

(b)(2)(ii) of this section, an employee 

who, for reasons of supervisory 

performance, does not satisfactorily 

complete the probationary period is 

entitled to be assigned to a position at 

a grade or pay band and pay no lower 

than that held before assignment to the 

supervisory position. 

(ii) A nonsupervisory employee who 

is reduced in band into a position that 

requires a supervisory probationary 

period and who, for reasons of 

supervisory performance, does not 

satisfactorily complete the probationary 

period is entitled to be reassigned to a 

grade or pay band no lower than that 

held when serving the supervisory 

probation. The employee is eligible for 

repromotion in accordance with NSPS 

promotion rules under § 9901.516. 


sroberts on PROD1PC70 with RULES
2768 Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Rules and Regulations 

(iii) The agency must notify the 

employee in writing that he or she is 

being assigned for failure to complete 

the supervisory probationary period. 

(iv) Appeals. (A) A competitive 

service employee, who, in accordance 

with the provisions of this section, is 

assigned to a nonsupervisory position, 

has no appeal right, except as provided 

in paragraph (b)(2)(iv)(B) of this section. 

(B) A competitive service employee 

who alleges that a Component action 

under this section was based on partisan 

political affiliation or marital status may 

appeal to the MSPB under 5 CFR 

315.908(b). 

(v) Relationship to other actions. (A) 

If an employee is required to 

concurrently serve both a supervisory 

and an initial probationary period, the 

latter takes precedence. 

(B) An action that demotes an 

employee to a pay band lower than the 

one the employee left to accept the 

supervisory position, for reasons other 

than supervisory performance, is 

governed by part 752 of this title. 

§ 9901.513 [Reserved] 

§ 9901.514 Non-citizen hiring. 

The Secretary may establish 

procedures for appointing non-citizens 

to permanent, temporary, or timelimited positions in the excepted 

service, provided there is a 

demonstrated absence of qualified U.S. 

citizens and applicable immigration and 

security requirements are met. Noncitizens may not be promoted, 

reassigned, or reduced in band, except 

in situations where a qualified U.S. 

citizen is once again unavailable. 

§ 9901.515 Competitive examining 

procedures. 

(a)(1) Under NSPS, applicants are 

appointed to career, career conditional, 

term, and temporary appointments in 

the competitive service using 

competitive examining procedures 

consistent with part 300, subpart A of 

this title. In recruiting applicants from 

outside the civil service for competitive 

appointments to competitive service 

positions in NSPS, Components with 

examining authority may use either 

numerical rating and ranking or 

alternative ranking and selection 

procedures (i.e., category rating). 

Components must decide which 

procedures to use prior to issuing a 

vacancy announcement and include this 

information in the vacancy 

announcement. 

(2) The Secretary will issue uniform 

policies, procedures, and guidance 

concerning competitive examining for 

NSPS within the Department and may 

delegate in writing authority for 

competitive examining for NSPS 

positions. All actions taken under 

competitive examining procedures will 

be made without regard to race, color, 

religion, age, gender, national origin, 

political affiliation, disability, sexual 

orientation, marital or family status, or 

other prohibited criteria, and will be 

based solely on job-related factors. 

These policies, procedures, and 

guidance will be consistent with the 

‘‘Uniform Guidelines on Employee 

Selection Procedures’’ (1978) 43 FR 

38290 (August 25, 1978) and part 332, 

subparts A and C of this title. 

(b) Public notice. (1) Components will 

accept applications from all U.S. 

citizens, to include current Federal 

employees, and at a minimum, will 

consider applicants from the local 

commuting area. Components may 

concurrently consider applicants from 

other targeted recruitment sources, as 

specified in the vacancy announcement. 

A targeted recruitment source is a 

category or grouping of potentially 

qualified individuals, such as all 

students at a particular university in a 

particular field of study. Targeted 

recruitment sources will be selected 

with equal protection considerations in 

mind, such as whether the sources will 

reach a diverse applicant pool. If there 

are insufficient qualified candidates in 

both the local commuting area and 

targeted recruitment sources, 

Components may consider applicants 

from outside that area. 

(2) When limiting consideration, the 

vacancy announcement will clearly 

state that consideration will be limited 

if sufficient qualified candidates are 

received from the local commuting area 

and other targeted recruitment sources. 

If sufficient candidates are not received 

from the local commuting area and 

other targeted recruitment sources, 

consideration will be expanded to all 

applicants; i.e., the area of consideration 

will not be expanded incrementally. 

(3) No minimum announcement 

opening period is required. The open 

period will be based on the type of 

position being filled and the availability 

of qualified candidates in the labor 

market. 

(c) Numerical rating and ranking 

procedures. When filling positions 

using numerical rating and ranking, the 

procedures issued by the Secretary will 

be followed. All qualified applicants 

may be referred and selection may be 

made from among any referred 

applicant except that a preference 

eligible will not be passed over to select 

a non-preference eligible, unless 

procedures under 5 U.S.C. 3318 for 

passing over a preference eligible are 

followed. 

(d) Alternative ranking and selection 

procedures (category rating). When 

filling positions using category rating, 

procedures issued by the Secretary will 

be followed in lieu of the procedures in 

part 337, subpart C, except for 

§ 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 serviceconnected 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. 

§ 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 § 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 


sroberts on PROD1PC70 with RULES
Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Rules and Regulations 2769 

assignment, reassignment, 

reinstatement, detail, transfer, and 

promotion of individuals or employees 

into or within NSPS, the procedures 

below, in conjunction with the merit 

promotion requirements in 5 CFR 

335.103(b) constitute the NSPS Merit 

Promotion Program. Internal placement 

actions may be made on a permanent or 

temporary basis using competitive and 

noncompetitive procedures. 

(1) All actions taken under the NSPS 

Merit Promotion Program, whether 

involving the identification, 

qualification, evaluation, or selection of 

candidates, will be made without regard 

to race, color, religion, age, gender, 

national origin, political affiliation, 

disability, sexual orientation, marital or 

family status or other prohibited criteria 

and will be based solely on job-related 

factors. 

(2) Vacancy announcements will 

identify areas of consideration that are 

sufficiently broad to ensure the 

availability of high quality candidates, 

taking into account the nature and level 

of the positions covered. Employees 

within the area of consideration who are 

absent for legitimate reason (e.g., on 

detail, on leave, at training courses, in 

the military service, or serving in public 

international organizations or on 

Intergovernmental Personnel Act 

assignments) must receive appropriate 

consideration, if they apply for a vacant 

position; i.e., they cannot be excluded 

from consideration because they are 

absent. Employees who are unable to 

apply for vacant positions while they 

are away may also make other 

appropriate arrangements for 

consideration. 

(3) To be eligible for promotion or 

placement, candidates must meet the 

minimum qualification standards 

prescribed by either OPM or the 

Department, as appropriate. Prior to the 

recruitment process, authorized 

management officials will identify 

through job analysis the job-related 

criteria that will be used to evaluate and 

determine the best qualified candidates 

for referral. The job analysis will 

identify the basic duties and 

responsibilities of the position being 

filled; the knowledge, skills, abilities, 

and/or competencies required to 

perform the duties and responsibilities; 

and the factors that are important in 

evaluating candidates. The job analysis 

may cover a single position or group of 

positions, or an occupation or group of 

occupations, having common 

characteristics. Candidate evaluation 

will give due weight to performance 

appraisals and incentive awards. When 

evaluating a candidate’s performance 

appraisals, consideration may be given 

to the differences in performance 

appraisal systems. Job analysis 

requirements will conform to the 

Uniform Guidelines on Employee 

Selection Procedures in 29 CFR part 

1607, and 5 CFR part 300, subpart A. 

(4) Management has the right to select 

or not select from among a group of 

highly qualified candidates and to select 

from appropriate sources of candidates. 

(5) Components will maintain a 

temporary record of each promotion to 

a competitive service position filled 

through internal competitive procedures 

to allow reconstruction of the placement 

action, including documentation on 

how candidates were rated, ranked, and 

referred. These records may be 

destroyed after 2 years or after the 

program has been formally evaluated by 

OPM (whichever occurs first) if the time 

limit for grievance has lapsed and 

destruction would otherwise be 

consistent with the Department’s 

Priority Placement Program 

requirements. 

(6) Competitive actions. (i) Except as 

provided in paragraph (e)(7) of this 

section, competitive procedures apply 

to promotion of an employee to a higher 

pay band (i.e., a higher level of work) 

and to the following actions: 

(A) Temporary promotion or detail to 

a higher pay band for more than 180 

days. Prior service during the preceding 

12 months under noncompetitive 

temporary promotions or details to 

higher pay-banded positions counts 

toward the 180-day total. A temporary 

promotion may be made permanent 

without further competition, provided 

the temporary promotion was originally 

made under competitive procedures and 

the fact that the temporary promotion 

might lead to a permanent promotion 

was made known to all potential 

candidates; 

(B) Reassignment or reduction in band 

to a position with more promotion 

potential than a position previously 

held on a permanent basis in the 

competitive service (except as permitted 

by reduction in force regulations at 5 

CFR part 351); 

(C) Transfer to a position at a higher 

pay band or with more promotion 

potential than a position previously 

held on a permanent basis in the 

competitive service; and 

(D) Reinstatement to a permanent, 

term, or temporary position at a higher 

pay band or with more promotion 

potential than a position previously 

held on a permanent basis in the 

competitive service. 

(ii) When determining whether the 

promotion potential of a General 

Schedule position is lower than that of 

the promotion potential of the NSPS 

position to which an employee moves, 

the definitions of higher, lower, and 

comparable levels of work under 

§ 9901.103 will be applied. 

(7) Exceptions to competition. (i) 

Competitive procedures do not apply to: 

(A) Promotion resulting from the 

upgrading of a position to a higher pay 

band level without significant change in 

the duties and responsibilities due to 

the issuance of a new NSPS 

classification standard or the correction 

of an initial classification error; 

(B) Promotion resulting from an 

employee’s position being classified at a 

higher pay band level because of 

additional duties and responsibilities; 

(C) Promotion resulting from previous 

competitive selection for a position with 

documented potential to a higher pay 

band; 

(D) Temporary promotion or detail to 

a higher pay band or a position with 

known promotion potential for 180 days 

or less; 

(E) Promotion to a higher pay band 

previously held on a permanent basis in 

the competitive service from which an 

employee was separated or demoted for 

other than performance or conduct 

reasons; 

(F) Promotion, reassignment, 

reduction in band, transfer, or 

reinstatement to a position having 

promotion potential no greater than the 

potential of a position an employee 

currently holds or previously held on a 

permanent basis in the competitive 

service (or in another merit system with 

which OPM has an approved 

interchange agreement) and did not lose 

because of performance or conduct 

reasons; 

(G) Consideration of a candidate not 

given proper consideration in a 

competitive promotion action; 

(H) Placement resulting from 

reduction in force procedures under 5 

CFR part 351; and 

(I) The appointment of career SES 

appointees with competitive service 

reinstatement eligibility to any position 

for which they qualify in the 

competitive service at any salary level, 

consistent with 5 CFR part 317, subpart 

G. 

(ii) When determining whether the 

promotion potential of a General 

Schedule position is lower than that of 

the promotion potential of the NSPS 

position to which an employee moves, 

the definitions of higher, lower, and 

comparable levels of work under 

§ 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 


sroberts on PROD1PC70 with RULES
2770 Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Rules and Regulations 

1To view the proposed rule and the comments 

we received, go to http://www.regulations.gov/ 

fdmspublic/component/ 

main?main=DocketDetail&d=APHIS-2007-0052. 

the posting of vacancy announcements; 

however, employees must be made 

aware that these processes may be 

utilized via newsletters, bulletin boards, 

websites, or other common methods of 

employee communication. Use of these 

alternative procedures is subject to the 

requirements of the DoD Priority 

Placement Program and the 

Reemployment Priority List. Employees 

within the area of consideration who are 

absent for legitimate reason (e.g., on 

detail, on leave, at training courses, in 

the military service, or serving in public 

international organizations or on 

Intergovernmental Personnel Act 

assignments) must receive appropriate 

consideration, i.e., they cannot be 

excluded from consideration because 

they are absent. 

(i) Assessment boards. (A) Boards 

may convene to assess internal 

candidates for current and future 

advancement opportunities based on 

pre-established criteria. Pre-established 

criteria may include experience, 

training, awards, education, 

performance evaluation scores (ratings 

of record) or other appropriate 

information consistent with merit 

system principles and the ‘‘Uniformed 

Guidelines on Employee Selection 

Procedures.’’ 

(B) Boards will categorize employees 

into specific levels of candidates to 

generate referral lists of ranked 

candidates for occupational groups. 

These referral lists are valid for one year 

from the date generated. Selection from 

the referral list should be further 

justified based on specific job-related 

factors unique to the actual vacancy. 

(C) Boards, which should be 

comprised of senior level managers 

(subject matter experts for each 

particular occupational group), may be 

convened on an ad hoc basis or may be 

held annually in conjunction with the 

performance evaluation process. 

(ii) Alternate certification. A selecting 

official may make a by-name request for 

an individual from any appropriate 

source of Department or Component 

employees. The employee may be 

selected if ranked within the highest 

quality group as determined by rating 

factors established for the position. 

(iii) Exceptional performance 

promotion. (A) An employee whose 

most recent rating of record is a Level 

5 performance rating may be promoted 

to a vacant position in a higher pay 

band when the vacant position has the 

same occupational series (or related 

interdisciplinary/interoccupational 

series) and similar function as the 

position the employee held at the time 

he or she received the Level 5 rating. 

(B) Selecting officials must determine 

and document the area of consideration, 

and must consider all employees in the 

area of consideration whose current 

Level 5 rating was based on 

performance in the same occupational 

series and similar function as the 

vacancy being filled. 

(9) Grievances. Employees have the 

right to file a complaint relating to a 

promotion action. Such complaints will 

be resolved under appropriate grievance 

procedures. The standards for 

adjudicating complaints are set forth in 

5 CFR part 300, subpart A. There is no 

right of appeal to OPM, but OPM may 

conduct investigations of substantial 

violations of OPM requirements. 

[FR Doc. E9–899 Filed 1–15–09; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF AGRICULTURE 

Animal and Plant Health Inspection 

Service 

7 CFR Parts 305 and 318 

[Docket No. APHIS–2007–0052] 

RIN 0579–AC70 

Revision of the Hawaiian and 

Territorial Fruits and Vegetables 

Regulations 

AGENCY: Animal and Plant Health 

Inspection Service, USDA. 

ACTION: Final rule. 

SUMMARY: We are revising and 

reorganizing the regulations pertaining 

to the interstate movement of fruits and 

vegetables from Hawaii and the 

territories to consolidate requirements 

of general applicability and eliminate 

redundant requirements, update terms 

and remove outdated requirements and 

references, and make various editorial 

and nonsubstantive changes to the 

regulations to make them easier to use. 

We are also making substantive changes 

to the regulations including establishing 

criteria within the regulations that, if 

met, will allow us to approve certain 

new fruits and vegetables for interstate 

movement in the United States and to 

acknowledge pest-free areas in Hawaii 

and U.S. territories expeditiously, and 

removing the listing in the regulations 

of some specific commodities as 

regulated articles. These changes are 

intended to simplify and expedite our 

processes for approving certain 

regulated articles for interstate 

movement and acknowledging pest-free 

areas while continuing to allow for 

public participation in the processes. 

This final rule does not allow for the 

interstate movement of any specific new 

fruits or vegetables, nor does it alter the 

conditions for interstate movement of 

currently approved fruits or vegetables. 

These changes will make our domestic 

interstate movement regulations more 

consistent with our fruits and vegetables 

import regulations. The changes in this 

final rule will not alter the manner in 

which the risk associated with a 

regulated article interstate movement 

request is evaluated, nor will they alter 

the manner in which those risks are 

ultimately mitigated. 

DATES: Effective Date: February 17, 

2009. 

FOR FURTHER INFORMATION CONTACT: Mr. 

David Lamb, Import Specialist, 

Commodity Import Analysis and 

Operations, PPQ, APHIS, 4700 River 

Road, Unit 133, Riverdale, MD 20737– 

1231; (301) 734–8758. 

SUPPLEMENTARY INFORMATION: 

Background 

Under the regulations in 7 CFR part 

318, ‘‘Hawaiian and Territorial 

Quarantine Notices’’ (referred to below 

as the regulations), the Animal and 

Plant Health Inspection Service (APHIS) 

of the U.S. Department of Agriculture 

(USDA or the Department) prohibits or 

restricts the interstate movement of 

fruits, vegetables, and other products 

from Hawaii, Puerto Rico, the U.S. 

Virgin Islands, and Guam to the 

continental United States to prevent the 

spread of plant pests and noxious weeds 

that occur in Hawaii and the territories. 

On June 17, 2008, we published in the 

Federal Register (73 FR 34202–34224, 

Docket No. APHIS–2007–0052) a 

proposal 1 to amend the regulations by 

revising and reorganizing those portions 

of the regulations pertaining to the 

interstate movement of fruits and 

vegetables to consolidate requirements 

of general applicability and eliminate 

redundant requirements, updating terms 

and remove outdated requirements and 

references, and making various editorial 

and nonsubstantive changes to the 

regulations to make them easier to use. 

We also proposed to make substantive 

changes to the regulations including: 

Establishing criteria within the 

regulations that, if met, would allow us 

to approve certain new fruits and 

vegetables for interstate movement in 

the United States and to acknowledge 

pest-free areas in Hawaii and U.S. 

territories expeditiously; and removing 

the listing in the regulations of some 

specific commodities as regulated 


sroberts on PROD1PC70 with RULES