Comment Number: OL-10501639
Received: 2/27/2005 2:00:58 PM
Subject: Notice of Proposed Rulemaking, Request for Comment
Title: National Security Personnel System
CFR Citation: 5 CFR Chapter XCIX and Part 9901
No Attachments

Comments:

Comments concerning - Federal Register: February 14, 2005 (Volume 70, Number 29) Proposed Rules: FR Document 05-2582/NSPS (National Security Personnel System) Page 7574(2): "This proposed regulation is consistent with the requirements of E.O. 12988. The regulation clearly specifies the effects on existing Federal law or regulation; provides clear legal standards; has no retroactive effects; specifies procedures for administrative and court actions; defines key terms; and is drafted clearly." In particular, the clear legal standard for NSPS is the phrase "sole, exclusive, and unreviewable discretion" of the SECDEF used at least eight (8) times in this document. Of course, the phrase "sole and exclusive" is used many more times as well. If that is the requirement for compliance for E.O. 12988, then there is no problem. Then, however, there may be a problem because the term, national security mission and DoD mission is not defined in this document. "DoD and OPM have determined these proposed regulations would not have federalism implications because they would apply only to Federal agencies and employees. The proposed regulations would not have financial or other effects on States, the relationship between the Federal Government and the States, or the distribution of power and responsibilities among the various levels of government." If destroying over one hundred years of Congressional law, executive branch decisions, and court (Federal District, Court of Appeals, and Supreme Court ) decisions does not change the distribution of power, then there is no conflict with E.O. 13132. Additionally, if the power acquired by SECDEF under these provisions from the use of the phrase, "sole, exclusive, and unreviewable discretion" does not change the distribution of power, then there is no problem.