Comment Number: OL-10509689
Received: 3/15/2005 5:05:04 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:

Supplementary Information: Classification – Subpart B and 9901.211 Page 7559, Table 1, Sample Classification Structure, depicts a career group structure concept that includes a separate career group for the Engineering and Scientific Supervisory/Managerial Pay. In an email from Dennis Turner to Marilee Fitzgerald dated 15 Oct 04, subject: OIPT Deliberations, Dennis provided the following as a decision on HR options that was made by the OIPT. “Supervisors should be placed in the same career group as nonsupervisory employees (i.e., no separate group dedicated solely to supervisors), but should have access to higher pay levels. The workgroup is to identify the pros and cons of providing higher supervisory pay as base pay or as a “bolt on” (supervisory adjustment).” Request clarification on whether or not supervisors and managers will be included in separate career groups. Supplementary Information: Pay and Pay Administration – Subpart C, Setting and Adjusting Rate Ranges and 9901.332 Page 7559, Setting and Adjusting Rate Ranges, states “The system will have a rate range, with a minimum and maximum rate, for each band in each career group based on factors such as labor market rates, recruitment and retention information, mission requirements, operational needs, and overall budgetary constraints. The bands will have open pay ranges, with no fixed step rates. DoD will also set local market supplements (a supplement to basic pay in lieu of locality pay) for rate ranges based on geographic and occupational factors. DoD will coordinate setting and adjusting rate ranges and local market supplements with OPM…. DoD may determine local market areas as well as the timing of these pay adjustments.” Page 7580, states “local market supplement means a geographic- and occupation-based supplement to basic pay, as described in Sec. 9901.332.” Request clarification as to whether the local market supplement replaces both locality pay (5 U.S.C. 5304) and special salary rates (5 U.S.C. 5305)? Supplementary Information: Pay and Pay Administration – Subpart C, Setting and Adjusting Rate Ranges and Adjusting Rate Ranges and Local Market Supplements and 9901.332 – 9901.333 Pages 7559-7560, Setting and Adjusting Rate Ranges, states, “DoD will also set local market supplements (a supplement to basic pay in lieu of locality pay) for rate ranges based on geographic and occupational factors. DoD will coordinate setting and adjusting rate ranges and local market supplements with OPM. Adjusting Rate Ranges and Local Market Supplements: DoD will determine the rate range adjustments and local market supplements considering mission requirements, labor market conditions, availability of funds, pay adjustments received by employees in other Federal agencies, allowances and differentials under 5 U.S.C. chapter 59, and other relevant factors. Rate range adjustments and local market supplements may differ by career group, pay schedule, or pay band. The minimum and maximum of a range may be adjusted at different rates. DoD may determine local market areas as well as the timing of these pay adjustments.” Both DoD and DHS address the issue of conducting pay surveys to determine future pay adjustment in relation to the labor market. Request DoD consider joint ownership of the pay survey process with DHS and/or shifting overall survey responsibility to OPM. This would preclude duplicate efforts on the part of two large agencies. Supplementary Information: Pay and Pay Administration – Subpart C, Setting and Adjusting Rate Ranges and 9901.323 Page 7559 -7560, Setting Rate Ranges and Local Market Supplements, states “Generally, employees will receive an adjustment equal to any increase to the minimum rate of their band and will receive any applicable local market supplement. In keeping with the desire of the Secretary and the Director to achieve and sustain a culture of high performance, the proposed regulations provide that these pay adjustments will not be provided to employees with an unacceptable performance rating.” Page 7581, subsection 9901.323, Eligibility for pay increase associated with a rate range adjustment, states “Except for employees receiving a retained rate under Sec. 9901.355, employees with a current rating of record above ``unacceptable'' will receive a percentage increase in basic pay equal to the percentage by which the minimum of their rate range is increased. (b) Employees with a current rating of record of ``unacceptable'' will not receive a pay increase under this section.” Does this mean that all employees in a particular career group and pay band with a rating of record above “unacceptable” will receive the same percentage rate range adjustment pay increase? Federal Register does not address the issue of what happens if the denial of a pay adjustment due to an unacceptable performance rating causes an employee’s pay to fall below the minimum of the pay band. Request clarification concerning eligibility for pay increases associated with a rate range adjustment. Include guidance regarding appropriate personnel actions for employees whose rating of record is unacceptable. Supplementary Information: Pay and Pay Administration – Subpart C, Performance Pay Pools and 9901.323 Page 7560, Performance Pay Pools, states “…The amount of money available within a pay pool is normally based on the money that would have been available for within-grade increases, quality step increases, promotions between grades that have been banded in the NSPS pay system, and applicable across-the-board pay increases.” Does the wording ”applicable across-the-board pay increases” refer to the rate range adjustment and/or local market supplement? Page 7581, Eligibility for pay increase associated with a rate range adjustment, states “Except for employees receiving a retained rate under Sec. 9901.355, employees with a current rating of record above ``unacceptable'' will receive a percentage increase in basic pay equal to the percentage by which the minimum of their rate range is increased.” If the rate range adjustment is part of the “applicable across-the-board pay increases”, then the guidance in the Federal Register appears to be in conflict. If employees are entitled to rate range adjustments if their rating of record is above unacceptable, then how can the rate range adjustment be part of the pay pool monies which can be paid out entirely as bonuses? Request clarification of the terminology ‘applicable across-the-board pay increases’ and what monies are at risk for employees whose rating of record are above unacceptable. Supplementary Information: Pay and Pay Administration – Subpart C, Performance Payout and 9901.342 Page 7560, Performance Payout, states “In addition, the proposed regulations allow DoD to establish control points or other mechanisms within a band, beyond which basic pay increases may be granted only for meeting criteria established by DoD. An example of such a control point is a requirement for the employee to have achieved the highest performance rating.” It is unclear as to whether or not this is a one-time check point that occurs about halfway though a given pay band and that once the employee crosses this control point, the control point no longer applies or whether the control point is checked for each basic pay increase where an employee’s current pay is above the control point. If it is a one-time check, the rule would never be invoked for employees whose initial pay is set above the control point. If the employee is not entitled to a basic pay increase due to the control point requirement, does their entire pay-for-performance entitlement get paid out as a lump sum bonus award? Will control points be a factor in setting pay at time of appointment or movement from one pay band to another? It appears that the intent of the control point is to limit pay progression of employees. For example, one of the goals of NSPS is to pay according to labor market rates based on the value of skills. As employees become proficient in their jobs, it is important to keep their pay in parity with the labor market rates. Otherwise their pay will stagnate and they may become unmotivated or be at risk of leaving their job to seek salary increases elsewhere. Proficiency is not the same thing as performance. Someone who is not yet proficient at a job may still be learning some of the basic skills. The GS system recognizes that proficiency is gained over time by awarding step increases. If the employee is not performing at an acceptable level, they are denied the step increase. The control point could prevent employees who are meeting or exceeding performance expectations from achieving the same level of pay they could receive under the current GS system. Recommend removal of control points. Note: DHS removed this feature in their final Federal Register. Supplementary Information: Pay and Pay Administration – Subpart C, Performance-Based Pay and 9901.345 Page 7561, Developmental Positions, states “Employees in developmental positions may receive pay adjustments as they acquire the competencies, skills, and knowledge necessary to advance to the full performance level.” Since this paragraph falls under “Performance-Based Pay”, does this imply that the monies to fund the pay adjustments for employees in developmental positions will come from the pay pool fund? Do these employees get a new rating of record each time they receive a pay adjustment (not related to a rate range adjustment)? If so, are they also eligible for bonuses at the time of the pay adjustment? Request clarification of pay adjustment provisions for employees in developmental positions. Supplementary Information: Pay and Pay Administration – Subpart C, Pay Administration, Initial Conversion and 9901.231 Page 7561, Initial Conversion, states “Upon implementation of the new system, employees will be converted based on their official position of record. Initial entry into NSPS will ensure that each employee is placed in the appropriate pay band without loss of pay.” Is “pay” defined as Basic Pay, Adjusted Basic Pay, Total Pay or the pay the individual receives from DFAS once things like premium pay or differentials, supplements, etc. are factored in? From an employee’s perspective, pay is the amount of money that shows up on their check. Is Supervisory Differential applicable under NSPS? If not, how will current Supervisory Differential be factored into an employee’s pay at time of conversion? Request definition of ‘pay’ as used in this context. Request clarification as to how Supervisory Differential will be handled at time of conversion. Supplementary Information: Pay and Pay Administration – Subpart C, Pay Administration, Initial Conversion and 9901.373 Page 7561, Pay Administration, states “Upon implementation of the new system, employees will be converted based on their official position of record. Initial entry into NSPS will ensure that each employee is placed in the appropriate pay band without loss of pay. Page 7584, Conversion of employees to the NSPS pay system, states “When an employee receiving a special rate under 5 U.S.C. 5305 before conversion is converted to an equal rate of pay under the NSPS pay system that consists of a basic rate and a local market supplement, the conversion will not be considered as resulting in a reduction in basic pay for the purpose of applying subpart G of this part.” If the local market supplement replaces special salary rates and is not part of basic pay, except as prescribed in Sec. 9901.332(c), how will pay be set for employees on a special salary rate at time of conversion without resulting in loss of pay for the employee? For example, conversion of an employee who is receiving a special salary rate and also receiving a retention allowance based on a percentage of their basic pay would result in a reduction of their total pay when their special salary rate is converted to the combination of the new basic pay and new local market supplement. Recommend clarification on what is meant by “without loss of pay”. Clarify or identify the impact of converting an employee’s special salary rate salary to a combination of a basic rate and a local market supplement, and the impact it will have on an employee’s overall pay. Specifically, how with this impact existing other pay (e.g., Retention Allowance, Administratively Uncontrollable Overtime, Supervisory Differential Availability Pay) and premium pays, differentials and supplements which are based on a percentage of an employee’s basic pay? Supplementary Information: Pay and Pay Administration – Subpart C, Pay Administration, Temporary Promotion and 9901.373 Page 7561, “Temporary Promotion: Employees on temporary promotions will be returned to their official position of record prior to conversion.” What are the rules for converting employees on LWOP, suspension, long term training and on IPA details? Recommend this sentence be changed to read as follows: Employees on temporary assignments such as Temporary Promotion, Temporary Change to Lower Grade, Temporary Reassignment or Temporary Position Change will be returned to their official position of record prior to conversion.” In addition, all Details will be terminated prior to conversion. Include guidance concerning conversion of individuals in non-pay status, on long term training or on IPA detail. Supplementary Information: Pay and Pay Administration – Subpart C, Pay Administration, Temporary Promotion and 9901.373 Page 7561, Pay Administration, states “Temporary Promotion: …GS employees will be converted at their current rate of basic pay, including any locality payment, adjusted on a one-time, pro-rata basis, for the time spent towards their next within-grade increase.” Recommend this statement be moved under the Initial Conversion paragraph since it applies to all employees, not just those on Temporary Promotion. Supplementary Information: Pay and Pay Administration – Subpart C, Pay Administration, Promotion and 9901.353 Page 7561, Pay Administration, states “Promotion pay increases (from a lower band to a higher band in the same cluster or to a higher band in a different cluster) generally will be a fixed percent of the employee's rate of basic pay or the amount necessary to reach the minimum rate of the higher band, whichever is greater. This amount is roughly equivalent to the value of a promotion to a higher grade within the GS system.” Page 7583, Setting pay upon promotion, states “Subject to DoD implementing issuances, DoD may set pay anywhere within the assigned pay band when an employee is promoted to a position in a higher pay band.” The guidance provided in these two statements appears to be inconsistent. Recommend guidance for pay setting be reviewed in view of possible conflicting verbiage. Supplementary Information: Pay and Pay Administration – Subpart C, Pay Administration, Reassignment and 9901.352 Page 7561, Pay Administration, states “Reassignment: An employee who moves to a position in a comparable pay band will have pay set depending on whether the move is voluntary or involuntary as a result of unacceptable performance and/or conduct. If the move is voluntary or involuntary and not due to unacceptable performance and/or conduct, pay will generally be set at the existing rate of pay; however, pay may be set at a higher rate within limitations specified in DoD implementing issuances.” Page 7583, Setting pay upon reassignment, states “a) Subject to paragraph (b) of this section, DoD may set pay anywhere within the assigned pay band when an employee is reassigned, either voluntarily or involuntarily, to a position in a comparable pay band.” The guidance provided in these two statements appears to be inconsistent. Recommend guidance for pay setting be reviewed in view of possible conflicting verbiage. Supplementary Information: Pay and Pay Administration – Subpart C, Premium Pay and 9901.361 Page 7561, Premium Pay, states “Section 9901.361 of the proposed regulations addresses DoD's authority to waive and replace the premium pay provisions in 5 U.S.C. chapter 55, subchapter V (except section 5545b), in whole or in part for employees in a category approved by the Secretary. DoD (in coordination with OPM) will establish any NSPS premium payments through implementing issuances.” Since the initial entry into NSPS requires that each employee be placed in the appropriate pay band without loss of pay, what is the policy for those employees receiving a premium pay that DoD has waived? Request clarification on pay setting policy regarding the conversion of an employee receiving a premium pay that has been waived. Supplementary Information: Staffing and Employment – Subpart E and 9901.511 Page 7563, Definitions, states “The proposed regulations simplify the categories of employment. Under NSPS, employees will be defined as either career or time-limited. Career employees serve without time limit in competitive or excepted service positions. Time-limited employees serve either for a specified duration (term) or for an unspecified, but limited duration (temporary). The proposed regulations eliminate the category of ``career-conditional employment;'' under NSPS, those employees may be hired directly into the career service.” Is the “career status” obtained under NSPS applicable when an employee transfers to a non-NSPS position within DoD or transfers to a non-DoD agency within 3 years of their initial appointment? Does this mean that employees brought in on VRA appointments will be considered career employees as this type of appointment requires a two year training period prior to conversion to career. Request clarification of how the “career status” obtained under NSPS rules applies when employees move to a non-NSPS position within DoD or transfers to a non-DoD agency. Request clarification of how VRA appointments will be handled under NSPS. Supplemental Information: Staffing and Employment--Subpart E, Recruitment and Competitive Examining 9901.515 Page 7563, Recruitment and Competitive Examining, states, “In order to increase the efficiency of the recruiting and hiring process without compromising merit principles, the proposed regulations allow DoD to target its recruiting strategy. DoD will provide public notice for all vacancies in the career service and accept applications from all sources; however, applicants from the local commuting area and other targeted sources may be considered first. If there are insufficient qualified candidates in the local commuting area, DoD may consider applicants from outside that area. Page 7587, Competitive examining procedures, states “a) In recruiting applicants for competitive appointments to competitive service positions in NSPS, DoD will provide public notice for all vacancies in the career service in accordance with 5 CFR part 330 and-- (1) Will accept applications for the vacant position from all sources; (2) Will, at a minimum, consider applicants from the local commuting area;” Is the intent of this to enforce consideration from all sources for all vacancies? Request clarification concerning the acceptance of applications from all sources. DoD does not want to force supervisors to consider applicants from all sources with every vacancy. Supervisors should have the same flexibility they have today of being able to limit the area of consideration. Supplementary Information: Subpart F Workforce Shaping and 9901.601 Page 7564, Workforce Shaping. Will there only be one round in RIF? The Fed Register does not specify. Request clarification regarding how RIF will be conducted. 9901.304 Page 7580, Definitions, state “Pay pool means the organizational elements/units or other categories of employees that are combined for the purpose of determining performance payouts. Each employee is in only one pay pool at a time.” If an employee can only be in one pay pool at a time, what is the guidance for determining the appropriate pay pool if an employee has two part-time assignments in different organizations having different pay pools? Clarification is requested regarding an employee who may legitimately reside in multiple pay pools based on holding multiple assignments. 9901.322 Page 7581, Setting and adjusting rate ranges, states “DoD may determine the effective date of newly set or adjusted band rate ranges.” Can an employee have more than one rate range adjustment during a year? Will rate range adjustments be done in conjunction with the pay for performance or can these two payouts occur at different times during the year? Recommend clarification regarding pay adjustments due to rate range adjustments. 9901.354 and 9901.704 Page 7583, Setting pay upon reduction in band, states “Subject to paragraph (b) of this section, DoD may set pay anywhere within the assigned pay band when an employee is reduced in band, either voluntarily or involuntarily. As applicable, pay retention provisions established under Sec. 9901.355 will apply.” Page 7590, 9901.704 Coverage. (b) Actions excluded, (16) states “An action to terminate grade retention upon conversion to the NSPS pay system established under subpart C of this part…” Is this due to the employee’s retained rate of pay being subsumed within the pay band or is retained grade no longer applicable under NSPS? If it is no longer applicable, what is the guidance for converting an employee whose Grade Retention salary exceeds the maximum of the band? Recommend guidance be provided regarding those employees currently on grade retention and how they will be handled at conversion. 9901.356 Page 7584, Miscellaneous, paragraph (d) states “…provide for a special increase prior to an employee’s movement in recognition of the fact that the employee will not be eligible for a promotion increase under the GS system, …” Is this only applicable within DoD or is it applicable when an employee leaves DoD for a non-DoD agency? Recommend clarification concerning whether this special increase applies to movements outside of DoD agency . 9901.371 Page 7584, Conversion Provisions, General, states “An affected employee may convert from the GS system, a prevailing rate system, the SL/ST system, or the SES system (or such other systems designated by the Secretary as DoD may be authorized to include under 5 U.S.C. 9902), as provided in Sec. 9901.302.” The conversion provisions do not address employees currently in an existing DoD demonstration project or Alternative Personnel System. Recommend amendment to conversion provisions to include a reference to DoD alternative personnel systems and non-science and technology reinvention laboratory demonstration projects. 9901.371 Page 7584, Conversion Provisions, General, states “For the purpose of this section and Sec. Sec. 9901.372 and 9901.373, the terms ``convert,'' ``converted,'' ``converting,'' and ``conversion'' refer to employees who become covered by the pay system without a change in position (as a result of a coverage determination made under Sec. 901.102(b)(2)) and exclude employees who are reassigned or transferred from a noncovered position to a position already covered by the NSPS pay system.” It also states “The Secretary has discretion to make one-time pay adjustments for GS and prevailing rate employees when they are converted to the NSPS pay system. DoD will issue implementing issuances governing any such pay adjustment, including rules governing employee eligibility, pay computations, and the timing of any such pay adjustment.” Is this one-time pay adjustment only given at the initial mass conversion into NSPS or can it occur upon entry into NSPS at other times such as a transfer from another agency or selection from a non-NSPS position? If an NSPS employee moves to a non-NSPS position that is subsequently included in different spiral, are they entitled to another “one-time pay adjustment”? Recommend clarification on the one-time pay adjustment (WGI Buy-in) in regards to movement of employees out of and then back into NSPS positions. Also, request clarification as to whether the one-time pay adjustment can be given as a result of a non-conversion personnel transaction that places a current non-NSPS employee on an NSPS position. 9901.402(c) and 9901.404 Page 7585, Section 9901.402(c), Coverage, states “This subpart does not apply to employees who have not been, and are not expected to be, employed in an NSPS position for longer than a minimum period (as defined in Sec. 9901.404) during a single 12-month period. Page 7585, Section 9901.404, Definitions, states “Minimum period means the period of time established by DoD during which an employee will perform under applicable performance expectations before receiving a rating of record. Section 9901.402(c) refers the reader to Section 9901.404 for a definition of “Minimum period”; however, when the reader reviews the definition, it does not provide any specifics. Recommend length of time for minimum period be defined in the Federal Register or modify section 9901.402(c) from “…a minimum period (as defined in Sec.9901.404)…” to “…a minimum period (as established by DoD)…” 9901.409 Page 7586, Rating and rewarding performance, (e) states “A rating of record issued under this subpart is an official rating of record for the purpose of any provision of title 5, Code of Federal Regulations, for which an official rating of record is required. DoD will transfer ratings of record between subordinate organizations and to other Federal departments or agencies in accordance with DoD implementing issuances.” Will the OPM rating of record values be used within NSPS? If not, will there be a crosswalk of values between the NSPS values and the OPM values so that the data transferred to other Federal departments or agencies will be acceptable to their systems. Recommend the OPM rating of record values be used for NSPS employees. Currently, many of the existing demonstration projects and alternate personnel systems have unique values for rating of record causing the need to store both the demo unique values and the OPM values. A crosswalk is used to auto-populate the OPM value. 9901.512 Page 7587, Probationary Periods, states “The Secretary may establish probationary periods as deemed appropriate for employees appointed to positions…..” Recommend the length of time of the probationary periods, as well as the conditions and rules of service creditable towards completion of the probationary period, be specifically addressed in 5 CFR. Other agencies need this information when picking up NSPS employees in order to determine if their initial probationary period has been completed or if they need to serve a new probationary period. 9901.513 Page 7587, Qualification Standards, states “DoD may continue to use qualification standards established or approved by OPM. DoD also may establish qualification standards for positions covered by the National Security Personnel System.” How will an employee’s qualifications be determined using the OPM qualification standards as these standards call for one year of specialized experience at the lower grade? Under NSPS, grades no longer exist. If, for example, a pay band includes GS-09 through GS-13, how will you determine if an NSPS employee has met the one year of specialized experience at the lower grade if they are applying for a GS-13 position? Request clarification on determining specialized experience using OPM qualification standards for internal placements for pay banded employees. 9901.607 Page 7589, Retention Standing, paragraph (1), states “Tenure, with career employees (including employees serving an initial probationary period)…” Recommend providing a section in 5 CFR to explain tenure under NSPS rules. This will ensure that gaining Agencies understand that NSPS employees are not required to serve 3 years of continuous service to obtain career tenure. This will aid the Agencies in determining the appropriate Nature of Action to use for their appointment action. 9901.606 and 9901.605 Page 7589, Competitive group. 9901.605 Competitive area. (d) states “competitive areas will be established for a minimun of 90 days before the effective date of a reduction in force.” . At what point in the RIF process will the competitive group be defined? Who has the authority to change the competitive group? Recommend further review. Since the competitive group can be defined in a number of different ways, a requirement would be needed to establish the length of time a competitive group must be in effect prior to the effective date of a RIF. 9901.608 Page 7589, Displacement, release, and position offers. Current regulations define the entitlement of a displaced employee to be 3 grades (5 for 30% vets). What will the employee’s entitlement now be since grades are no longer relevant? Request clarification on entitlements of displaced employees due to RIF. 9901.608 Page 7589, Displacement, release, and position offers, (c) Placement in vacant positions. Does this subpart allow Components the flexibility to use a vacancy within the same competitive group in lieu of displacing a lower graded employee in the same group? Recommend agencies be provided the flexibility to use a vacancy within the competitive group (prior to releasing from the group) to prevent displacing lower graded employees. This will lessen the negative impact of the RIF.