| Comment Number: | OL-10508301 |
| Received: | 3/15/2005 1:50:14 AM |
| 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:
Section 9901.105, Coordination with OPM. “Coordination” has a special meaning in these proposed regulations. It is described in section 9901.105 as follows: “…The Secretary will advise and/or coordinate with OPM in advance, as applicable, regarding the proposed promulgation of certain DOD implementing issuances and certain other actions related to the ongoing operation of the NSPS where such actions could have a significant impact on other Federal agencies and the Federal civil service as a whole. Such pre-decisional coordination is intended as an internal DOD/OPM matter to recognize the Secretary’s special authority to direct the operations of the Department of Defense pursuant to title 10, U.S., Code, as well as the Director’s institutional responsibility to oversee the Federal civil service system.” In other words, DoD is saying that the actual design of the system will not be done jointly with OPM, but through a process in which DoD unilaterally designs the details, notifies OPM, and OPM intervenes only if it believes that what DoD wants to do could have a significant impact on other Federal agencies or the Federal civil service as a whole. This is not the new personnel system established by regulations jointly prescribed by DoD and OPM that Congress intended. Similarly, DoD started the statutory collaboration process while providing the employee representatives with far too little detail to make meaningful comments and recommendations. We have been told that our 30 days to comment on the new personnel system has started, yet we have never received the “written description of the proposed system” required by section 9902(f)(1)(a). It is hard to imagine a productive mediation process over what the Secretary might decide to do in the future, but is not going to tell us now. How do we “meet and confer in an effort to reach agreement” about details DoD has not revealed to us and plans to develop unilaterally outside of the statutory process? Rather, the proposed regulations repeat, over and over again, that the actual details of the systems may be determined in the future through “implementing issuances” developed internally, outside of both the public’s right to comment and the statutory collaboration process required by the NSPS Law. “Implementing issuances, as defined in section 9901.103, means: [D]ocuments issued at the Departmental level by the Secretary to carry out any policy or procedure established in accordance with this part. These issuances may apply Department-wide or to any part of DOD as determined by the Secretary at his or her sole and exclusive discretion. In other words, DOD merely has to produce a document, not necessarily a directive or regulation, that the Secretary deems to be an “implementing issuance,” and thereby relegate the union to the position of merely being allowed to comment and only if invited by the Secretary, as described in section 9901.106. This falls far short of the statutory mandate that the personnel system be designed in collaboration with the unions. The statutory collaboration process was to include the provision of a written description of the proposed system, a 30-day opportunity for the unions to review and make recommendations, notification to Congress of the unions’ recommendations including which ones DOD chooses not to accept, and a period of at least 30 days to meet and confer, with FMCS assistance if requested, in order to attempt to reach agreement on whether or how to proceed with those parts of the proposal. We have not yet received a written description of the proposed system, but are being asked to squander our collaboration efforts (which the NSPS law says are the exclusive procedures for our participation in the planning, development, implementation, or adjustment of the NSPS) on speculation about what the actual systems might be.