[Federal Register: May 22, 2008 (Volume 73, Number 100)]
[Proposed Rules]
[Page 29881-29927]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22my08-19]
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Part III
Department of Defense
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Office of Personnel Management
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5 CFR Part 9901
National Security Personnel System; Proposed Rule
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DEPARTMENT OF DEFENSE
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 9901
RIN 3206-AL62
National Security Personnel System
AGENCY: Department of Defense; Office of Personnel Management.
ACTION: Proposed rule.
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SUMMARY: The Department of Defense (DoD) and the Office of Personnel
Management (OPM) are issuing proposed regulations revising the National
Security Personnel System (NSPS), a human resources management system
for DoD, as originally authorized by the National Defense Authorization
Act for Fiscal Year 2004 and amended by the National Defense
Authorization Act for Fiscal Year 2008. The proposed regulation governs
compensation, classification and performance management under NSPS.
NSPS aligns DoD's human resources management system with the
Department's critical mission requirements and protects the civil
service rights of its employees.
DATES: Comments must be received on or before June 23, 2008.
ADDRESSES: You may submit comments identified by docket number NSPS-
OPM-2008-0081 and/or Regulatory Information Number (RIN) 3206-AL62.
Please arrange and identify your comments on the regulatory text by
subpart and section number; if your comments relate to the
supplementary information, please refer to the heading and page number.
There are two methods for submitting comments. Please submit only one
set of comments via one of the methods described.
Preferred Method for Comments: The preferred method for
submitting comments is through the Federal Rulemaking Portal: http://
www.regulations.gov. Follow the instructions for submitting comments.
Alternative Method for Comments: If unable to access the
Federal Rulemaking Portal, comments may be mailed to the following
address: DOD/OPM/NSPS Public Comments, PO Box 14474, Washington, DC
20044.
Instructions: All submissions must include the agency name and
docket number or RIN for this rulemaking. Mailed comments must be in
paper form. No mailed comments in electronic form (CDs, floppy disk, or
other media) will be accepted. The Federal Rulemaking Portal, http://
www.regulations.gov, will contain any public comments as received,
without change, unless the comment contains security-sensitive
material, confidential business information, or other information for
which public disclosure is restricted by statute. If such material is
received, we will provide a reference to that material in the version
of the comment that is placed in the docket. The docket system is an
``anonymous access'' system, which means that DoD and OPM will not know
your identity, e-mail address, or other contact information unless you
provide it in the body of your comment. Unless a comment is submitted
anonymously, the names of all commenters will be public information.
Please ensure your comments are submitted within the specified open
comment period. Comments received after the close of the comment period
will be marked ``late,'' and DoD and OPM are not required to consider
them in formulating a final decision.
Before acting on this proposal, DoD and OPM will consider all
comments we receive on or before the closing date for comments.
Comments filed late will be considered only if it is possible to do so
without incurring expense or delay. Changes to this proposal may be
made in light of the comments we receive.
FOR FURTHER INFORMATION CONTACT: For DoD, Bradley B. Bunn, (703) 696-
5604; for OPM, Charles D. Grimes III, (202) 606-8079.
SUPPLEMENTARY INFORMATION: The Department of Defense (DoD or ``the
Department'') and the Office of Personnel Management (OPM) are
proposing to amend 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). The
following information is intended to provide interested parties with
relevant background material about (1) the changes to the regulations,
(2) the process used to make the changes, (3) a description of the
revised NSPS regulations, and (4) an analysis of the costs and benefits
of those proposed regulations.
To the extent that this rule is consistent with the rule published
in Federal Register dated November 1, 2005 (Volume 70, Number 210)
[Rules and Regulations] [Page 66115-66220] (http://
edocket.access.gpo.gov/2005/05-21494.htm), the supplementary
information pertaining to that rule is adopted as part of the
supplementary information to this rule.
The Need for Change
DoD civilian employees are unique in Government: They are an
integral part of an organization that has a military function. DoD
civilian employees complement and support the military around the
world. To support the interests of the United States in today's
national security environment, civilian employees must be an
integrated, flexible, and responsive part of the DoD team. Just as new
threats, new missions, new technology, and new tactics are changing the
work of the military, they are changing the work of DoD's 700,000
civilian employees.
The Department's experience operating under the current NSPS
regulations as well as the 20 years of experience with transformational
personnel demonstration projects, covering nearly 30,000 DoD employees,
has shown that fundamental change in personnel management has a
positive impact on individual career growth and opportunities,
workforce responsiveness, and innovation; all these things enhance
mission effectiveness.
Public Law 108-136 amended title 5, United States Code, to provide
the Department with the authority to meet this transformation challenge
through development and deployment of the NSPS. Public Law 110-181,
while amending Public Law 108-136, continues to promote a performance
culture in which the performance and contributions of the DoD civilian
workforce are linked to strategic mission objectives and are more fully
recognized and rewarded. It also retains flexibilities to streamline
the method for classifying positions and to provide a more flexible
support structure for both pay and classification in order to help
attract skilled and talented workers; retain and appropriately reward
current employees; respond to DoD mission requirements; and create
opportunities for employees to participate more fully in the total
integrated workforce. The System offers the more than 181,000 currently
covered employees a contemporary pay banding construct, which includes
performance-based pay. NSPS allows the Department to be more
competitive in setting salaries and to adjust salaries based on
factors, such as labor market conditions, performance, and changes in
duties. The updated HR management system rules more specifically govern
how retained classification, compensation, and performance management
flexibilities
[[Page 29883]]
will be implemented. The greater level of detail reflects a continued
commitment to greater transparency regarding provisions of Pub. L. 110-
181 and system improvements in light of operational experience with
NSPS. The System retains the core values of the civil service,
including merit systems principles and veterans' preference, and allows
employees to be paid and rewarded based on performance, innovation, and
results.
Significant Changes to the Original Law
The original NSPS statute was enacted on November 24, 2003, and
provided the Secretary of Defense, in regulations jointly prescribed
with the Director of OPM, the authority to establish a flexible and
contemporary civilian personnel system called the National Security
Personnel System. This new civilian personnel system was intended to
cover most of the approximately 700,000 DoD civilian employees,
including blue-collar employees.
Among its features, it provided authority to establish a pay-for-
performance system that recognizes and rewards employees based on
performance and contribution to the mission; a new pay banding system
to replace the General Schedule (GS); a simplified job classification
process and flexible processes to assign new or different work;
streamlined hiring processes and the ability to offer more competitive,
market-sensitive compensation; improved workforce shaping procedures
that reduce disruption with greater emphasis on performance as a factor
in retention; expedited disciplinary and employee appeals processes for
faster resolution of workplace issues, while preserving due process
rights of employees; and a labor-management relations system that
recognized DoD's critical national security mission and the need to act
swiftly to execute that mission, while preserving collective bargaining
rights of employees. The changes to labor relations included the
ability to negotiate at the national level instead of negotiating with
more than 1,500 local bargaining units, and the ability to establish a
new independent third party to resolve labor relations disputes in DoD.
Public Law 110-181 amended title 5, United States Code, retaining
authority for performance-based pay and classification and compensation
flexibilities, but substantially modifying other NSPS authorities. The
law, among other things--
Brings NSPS under Governmentwide labor-management
relations rules.
Excludes Federal Wage System (blue collar) employees from
coverage under NSPS.
Requires DoD to collectively bargain procedures and
appropriate arrangements for bringing DoD bargaining unit employees
under NSPS prior to conversion of these employees.
Brings NSPS under Governmentwide rules for disciplinary
actions and employee appeals of adverse actions.
Brings NSPS under Governmentwide rules for workforce
shaping (reduction in force, furlough, and transfer of function).
Requires that this rule be considered a major rule for the
purposes of section 801 of title 5, United States Code, with advance
Congressional notification for OPM/DoD jointly-prescribed NSPS
regulations.
Gives these rules the status of Governmentwide rules for
the purpose of collective bargaining under chapter 71 when these rules
are uniformly applicable to all organizational or functional units
included in NSPS.
Mandates that all employees with a performance rating
above ``unacceptable'' or who do not have current performance ratings
receive no less than sixty percent of the annual Governmentwide General
Schedule pay increase (with the balance allocated to pay pool funding
for the purpose of increasing rates of pay on the basis of employee
performance).
Based on the changes Public Law 110-181 made to Section 9902 of
title 5, the proposed rule deletes subparts F, G, H, and I (dealing
with workforce shaping, adverse actions, appeals, and labor relations,
respectively) of the current NSPS regulations. Subpart E (dealing with
staffing) is also removed.
Public Law 110-181 also modifies the authority to conduct national-
level bargaining and retains the rights of employees to organize,
bargain collectively and participate through labor organizations of
their own choosing in decisions which affect them, subject to any
exclusion from coverage or limitation on negotiability established
pursuant to law. It extends and expands exclusions from NSPS coverage
for certain DoD laboratories through October 1, 2011. Some of these
laboratories operate under demonstration project authorities which
provide their own pay-for-performance systems.
In establishing the revised System, only certain provisions of
title 5, United States Code, may be waived or modified by DoD and OPM:
Chapter 43 (dealing with performance management);
Chapter 51 (dealing with General Schedule job
classification);
Chapter 53 (dealing with pay for General Schedule
employees and pay for certain other employees), except for certain
sections for which waiver or modification is barred by law; and
Subchapter V of chapter 55 (dealing with premium pay),
except sections 5544 (dealing with prevailing rate employees) and 5545b
(dealing with firefighter pay).
Two Years Operational Experience Under NSPS
In order to provide consistency and uniformity of application
throughout the Department, certain NSPS features previously described
in DoD implementing issuances have been incorporated into this
regulation. DoD now has more than 2 years of experience with these
features and has determined that they effectively support key
performance parameters of NSPS. In addition, the regulation includes
modifications made to NSPS as a result of operational lessons learned
over the last 2 years.
Classification
Effective Date of Classification of Position
The regulation now provides specific details for entitlement to
retroactive effective date of a classification decision. While the
prior regulation provided for both a classification reconsideration
process and a retroactive effective date, more detail has been provided
to enhance transparency of the regulation as well as to provide for a
uniform and consistent rule.
The Table of Changes further addresses this and other changes in
the NSPS regulation in the area of Classification.
Compensation
Compensation Architecture
The proposed regulation modifies rules governing the current
compensation structure by removing the link between increases in the
minimum rate of the rate range and across-the-board increases. This
change enables more flexibility in responding to labor market changes
that may impact the lower end of a pay range for an occupation, but not
the middle or upper ranges. Also, discretionary authority is now
provided to give additional general salary increases to designated
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occupational series within a pay band. This flexibility enables
management to adjust pay to recognize market forces when the pay band
itself is market competitive, but due to rapidly changing markets, the
current salaries paid to employees in certain occupations are not.
Pay Administration
Several changes have been made in the area of pay administration.
Pay setting flexibilities have been expanded to permit discretionary
within-grade increase buy-ins when employees from outside of NSPS move
to a NSPS position. Safeguards have been incorporated for employees who
are moved to NSPS via management-directed actions. In these cases, the
regulation now specifies a required within-grade increase buy-in. A
significant level of detail has been added to describe how pay is
administered upon promotion, reassignment, reduction in band and
appointment to the Federal service. Most of this detail reflects the
pay setting rules that have been applied during the past 2 years of
NSPS operation. These practices are incorporated now to increase
transparency in the system and because they have been effective in
operation.
The proposed rule retains management's flexibility to set pay
within a given range, but provides safeguards by placing limitations on
the factors management may use in exercising their discretion as well
as establishing pay increase limits that cannot be exceeded without
higher level review. There have also been some modifications to pay
setting practices based on DoD's experience with the System. Most
significantly, pay setting rules for employees moving into NSPS from
other systems or moving from NSPS positions covered by targeted local
market supplements have been revised. Pay for these employees was
previously set using the base salary. Pay will now be set using
``adjusted salary'' (includes base salary plus any applicable locality
pay, special rate supplement, or other equivalent supplement) and any
physicians' comparability allowance payable for the position held prior
to the reassignment. In these cases, when the new position is in a
different location, a geographic pay conversion will be processed.
These rules allow management to set pay more competitively and
equitably compensate employees by permitting pay to be set in a manner
that prevents a loss in adjusted salary in certain circumstances.
Further changes in NSPS pay setting rules include the discretion to
adjust the rate of pay of a teacher moving into NSPS up to 20 percent
to take into account the shorter work year incorporated in the annual
rate of a teacher paid under 20 U.S.C. 901.
Pay Retention
Pay retention rules have been modified to provide a ``grandfather''
clause for employees who are covered by General Schedule grade and pay
retention rules at the time they are converted into NSPS. These
employees will not be subject to the 104-week limit on pay retention.
They will be entitled to pay retention indefinitely subject to
specifically identified pay retention termination events. Much detail
has been added in the area of pay retention to identify circumstances
for which pay retention is mandatory, eligibility requirements for
optional pay retention and events leading to termination of pay
retention. These rules reflect current practices under NSPS.
Accelerated Compensation for Developmental Positions (ACDP)
``Treatment of Developmental Positions'' (Section 9901.345) has
been modified to specify criteria for Accelerated Compensation for
Developmental Positions (ACDP) increases, identify the range of pay
increases that are permitted under this discretionary authority, and to
expand the discretionary use of ACDP to employees in developmental or
trainee level positions assigned to the lowest pay band of a
nonsupervisory pay schedule. To date, this authority has only been
available to employees in developmental or trainee level positions in
professional and analytical occupations. The change provides additional
flexibility to recognize pay progression patterns in other occupations.
Premium Pay
A critical feature of NSPS compensation is the ability to modify
premium pay in response to current and future needs. This flexibility
facilitates the Department's ability to accomplish its diverse mission.
The revised regulation incorporates rules governing NSPS premium pay.
Premium pay includes pay such as overtime pay, compensatory time off,
holiday, Sunday, and standby pay. Among the premium pay features unique
to NSPS are: on-call premium pay for health care personnel in specified
circumstances, pay for weekend duty for health care personnel, and
foreign language proficiency pay. For the most part, the regulations
reflect current premium pay policies under NSPS, which include certain
modifications to the standard title 5 premium pay laws and regulations
to address unique DoD mission requirements and differences in the NSPS
classification and pay structure.
Conversion/Movement Out of NSPS
Regulations have been added to provide a process for converting
employees out of NSPS when their position is removed from coverage
under the System and to provide a ``virtual GS grade'' to employees who
leave their NSPS position to accept employment in non-NSPS positions.
These rules promote more equitable pay setting upon moves to different
pay systems.
The Table of Changes further addresses these and other changes in
the NSPS regulation in the area of Compensation.
Performance and Pay Pool Management
Higher Level Review
The proposed regulation more specifically outlines safeguards to
ensure the NSPS performance and pay pool management system is fair and
equitable based on employee performance. For example, under Subpart D,
the revised regulation now provides for a higher level review of
performance expectations. This review helps ensure that assigned
employee objectives are reviewed for appropriateness and consistency
within and across the organization and/or pay pool. This safeguard at
the beginning of the performance management process helps to ensure
equity at the end of it when performance payouts are paid from a common
pay pool fund.
Calculating Annual Payout
Rating levels and share distribution ranges are also specified in
the revised regulation as well as formulas for share values and
calculation of performance payouts. This revised language enhances
system transparency for all by providing additional specificity to
these elements. The language also clarifies the intended application of
a common share value (expressed as a percent of pay) throughout an
entire pay pool, to include all sub pay pools. This further preserves
equity across a pay pool.
Flexibility in Extending Performance Appraisal Periods
The authority to extend individual performance appraisal periods to
enable employees to meet minimum performance appraisal periods is
specified as well as limitations on this authority. By specifically
providing for extension of individual rating cycles, valued performers
and higher level
[[Page 29885]]
performing employees moving to NSPS positions can more quickly benefit
from the NSPS performance based pay features.
Pay Pools
The pay pool concept has also been further defined in this
regulation by providing parameters for pay pool composition and
specifying the roles of pay pool officials within the pay pool process.
Much thought was given to achieving the ``right'' balance between
safeguards and management flexibility. For example, although pay pool
share ranges have been specified for each rating level, management
still has the flexibility to determine assignment of shares within that
range. System safeguards were added to ensure fairness, equity, and a
performance focus by expressly stating and limiting the factors which
may be used in the determination of share assignment. Similarly,
management still retains the flexibility and authority to determine the
distribution of a performance payout between base salary increase and
bonus or a combination thereof. However, to ensure safeguards within
the system, the factors management may use in exercising this authority
have also been expressly defined and limited to ensure fairness,
equity, and a performance focus. While pay pool funding is still
determined by management, higher-level reviews have been required to
provide internal controls.
Reconsideration Process
Employee performance reconsideration rights have been expanded to
permit reconsideration of individual performance objective ratings in
addition to the overall rating of record. This change recognizes that
many pay pools use raw performance scores as a guide in determining how
many shares to assign to employees. Since raw performance scores may be
impacted by individual performance objective ratings, the ability to
request review of individual performance objectives enables employees
to seek redress on all performance rating decisions affecting their
pay.
Other Changes
Other changes reflected in this regulation include language
providing salary increases for employees who did not meet the minimum
period of performance due to an approved paid leave status or
performance of labor activities on ``official time''. These pay
adjustments will be based on the modal rating of a pay pool. Likewise,
provisions have been made to adjust the pay of employees returning from
temporary assignments outside of NSPS or returning from long-term
training for which no NSPS performance plan was assigned. These changes
ensure that employee pay is not harmed by the failure to meet a minimum
performance period or inability to rate performance while they either
exercise statutory leave entitlements or fulfill other important roles
to the organization.
Finally, the regulations permit coverage under NSPS pay setting and
classification flexibilities for employees who are appointed for less
than 90 days by providing limited coverage of these employees under
Subpart D of Performance Management. Providing access to NSPS pay
setting flexibilities for these positions enhances DoD's competitive
position in the labor market when hiring temporary employees for 90
days or fewer.
The Table of Changes addresses these and other changes in the NSPS
regulation.
Process for Developing Proposed Regulations
Working Groups
In January 2008, working groups began meeting to revise the current
regulations. The working groups were functionally aligned to cover the
following human resources program areas: (1) Compensation
(classification and pay banding); (2) performance management; (3)
hiring, assignment, and pay setting; and (4) workforce shaping. The
working groups, staffed by DoD employees and OPM, identified and
developed options and alternatives for consideration in the revised
design of NSPS. These were then reviewed and approved for incorporation
by DoD and OPM senior officials prior to formal coordination and
publication in the Federal Register.
General Provisions--Subpart A
This subpart has been changed to bring NSPS into compliance with
the National Defense Authorization Act for Fiscal Year 2008 and
incorporate planned changes. Key changes to this subpart include
deleting references to subparts that have been removed; revising the
list of defined terms; and adding actions that require OPM approval
prior to implementation.
The following Table of Changes lists, by specific regulatory
section, a brief description of each significant change.
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Citation Description of proposed change
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Sec. 9901.101(a)........... Purpose. Amends paragraph to delete
reference to a new labor-management
system and include a provision enabling
the Secretary to establish implementing
issuances to supplement any matter
covered by the regulation.
Sec. 9901.101(b)(1)........ Amends paragraph to delete reference to a
new labor-management system.
Sec. 9901.101(b)(2)........ Amends paragraph to delete references to
a labor relations system.
Sec. 9901.102(a)........... Eligibility for coverage. Amends
paragraph to remove reference to
subparts E through I.
Sec. 9901.102(b)........... Amends paragraph to (1) clarify the
Secretary's sole and exclusive
discretion to decide to apply coverage
to an eligible category or categories of
employees; (2) delete reference to
subparts E, F, G, and H; (3) incorporate
information previously found at Sec.
9901.105(b) requiring DoD to advise OPM
in advance when it intends to extend
coverage of NSPS to specific categories
of employees.
Sec. 9901.102(d)........... Amends paragraph to reflect the
interrelationship of the classification,
pay, and performance management systems
established under NSPS.
Sec. 9901.102(e)........... Amends paragraph to clarify the
Secretary's sole and exclusive
discretion to decide to rescind coverage
of NSPS for a particular category of
employees or an organization or
functional unit.
Sec. 9901.102(f)(3)........ Amends paragraph to change reference from
Sec. 9901.373 to Sec. 9901.371 to
reflect number change in another
subpart.
Sec. 9901.103.............. Definitions. Deletes definitions for
furlough, initial probationary period,
in-service probationary period, labor
organization, mandatory removal
offenses, and MSPB. Adds definitions for
appraisal period, comparable pay band or
comparable level of work, Component,
higher pay band or higher level of work,
lower pay band or lower level of work,
pay pool, Pay Pool Manager, Pay Pool
Panel, and Performance Review Authority.
Revises definitions for basic pay, day,
implementing issuances, National
Security Personnel System, promotion,
rating of record, reassignment, and
reduction in band to add or delete
information and add clarity.
[[Page 29886]]
Sec. 9901.104.............. Scope of authority. Amends section to
delete paragraphs (a), (f), (g), and (h)
and to redesignate the remaining
paragraphs. Deletes language allowing
the Department to waive portions of
chapter 53 related to pay and job
grading for Federal Wage System
employees. Adds reference to section
5544 (dealing with premium pay for
Federal Wage System employees) as
another premium pay provision that may
not be waived.
Sec. 9901.105.............. OPM coordination and approval. Amends the
title of this section to add information
on actions requiring OPM approval prior
to implementation. Deletes paragraphs
(f) and (g). Also, deletes paragraphs
(h) and (i) and moves material in those
paragraphs to paragraphs (d) and (e),
respectively.
Sec. 9901.105(a)........... Amends paragraph to add requirement to
request OPM approval in advance of
implementation of certain actions.
Sec. 9901.105(b)........... Replaces the former Sec. 9901.105(b)
paragraph and adds items previously
found at Sec. 9901.105(c), (d), and
(e).
Sec. 9901.105(c)........... Revises paragraph to add actions
requiring the Director's approval prior
to implementation.
Sec. 9901.105(d)........... Places material previously found at Sec.
9901.105(h) in this paragraph.
Sec. 9901.105(e)........... Places material previously found at Sec.
9901.105(i) in this paragraph and notes
that some actions require OPM approval.
Sec. 9901.106.............. Relationship to other provisions. Deletes
the material formerly at Sec. 9901.106
and replaces with material formerly
found at Sec. 9901.107. Removes
material related to application of the
back pay law in 5 U.S.C. 5596 previously
found at Sec. 9901.107(b)(2) and (3).
Sec. 9901.106(b)(1)........ Amends paragraph to include material
previously found at Sec. 9901.107(b).
Deletes reference to chapters 31, 33,
35, 71, 75, and 77.
Sec. 9901.106(b)(2)........ Amends paragraph to include material
previously found at Sec.
9901.107(b)(1). Deletes reference to
chapters 31, 33, 35, 71, 75, and 77 and
removes reference to subparts E through
I. Removes reference to physicians'
comparability allowances under 5 U.S.C.
5948 previously found at Sec.
9901.107(b)(1)(iv).
Sec. 9901.106(c)(2)........ Adds paragraph specifying that the
authority in 5 U.S.C. 5948 to provide
physicians' comparability allowances to
GS physicians does not apply to NSPS
physicians.
Sec. 9901.107.............. Program evaluation. Moves material
previously found at Sec. 9901.108 (and
deletes that section) and deletes
requirements related to employee
representatives.
------------------------------------------------------------------------
Classification--Subpart B
Subpart B provides DoD with the authority to replace the current GS
classification and qualifications systems and other current
classification systems with a new method of evaluating and classifying
jobs by grouping them into occupational categories and levels of work
for pay and other related purposes. Under NSPS, DoD (in coordination
with OPM) will have the authority to establish qualifications for
positions and to assign occupations and positions to broad occupational
career groups, pay schedules, and pay bands (or levels).
The NSPS classification system fully supports the merit system
principle that ``equal pay should be provided for work of equal value,
with appropriate consideration of both national and local rates paid by
employers in the private sector, and appropriate incentives and
recognition for excellence in performance.''
The pay banding structure replaces artificial limitations created
by current classification systems. Broad pay bands provide the ability
to move employees more freely across a range of work and provide
opportunities that are not possible when bound by traditional narrowly
described work definitions. While pay banding provides greater
flexibility and agility to the Department, the classification system
continues to ensure employees have access to long-established
protections related to the classification of their positions. Employees
are permitted to request reconsideration of the classification (pay
system, career group, occupational series, official title, pay
schedule, or pay band) of their official positions of record at any
time with DoD and/or OPM, as they can today under the GS system. The
system described in subpart B, together with the revised pay system
described in subpart C, will provide DoD with greater flexibility to
adapt the Department's job and pay structure to meet present and future
mission requirements.
The following Table of Changes lists, by specific regulatory
section, a brief description of each significant change.
------------------------------------------------------------------------
Citation Description of proposed change
------------------------------------------------------------------------
Sec. 9901.201(a)........... Purpose. Amends paragraph to delete
reference to prevailing rate system
established under 5 U.S.C. chapter 53,
subchapter IV.
Sec. 9901.201(b)(2)........ Coverage. Deletes former paragraph which
referenced prevailing rate system
established under 5 U.S.C. chapter 53,
subchapter IV.
Sec. 9901.202.............. Coverage. Deletes former paragraph Sec.
9901.202(b)(2) which referenced
prevailing rate system established under
5 U.S.C. chapter 53, subchapter IV, and
redesignates remaining paragraphs
accordingly.
Sec. 9901.203(a)........... Waivers. Amends paragraph to delete
reference to the prevailing rate system
under 5 U.S.C. 5346 and 5346(c) and
changes reference to Sec. 9901.107 to
Sec. 9901.106 to reflect the
renumbering of that section. Adds review
of pay plan under 5 U.S.C. 5103.
Sec. 9901.203(b)........... Adds reference to 5 U.S.C. 6304(f)
(regarding annual leave ceilings for
members of the Senior Executive Service
(SES) and employees in senior-level
positions compensated under 5 U.S.C.
5376 (SL/ST)) to reflect updates to U.S.
Code.
Sec. 9901.204.............. Definitions. Modifies definition for
classification to include a reference to
official title and adds definition of
official title.
Sec. 9901.205.............. Bar on collective bargaining. Deletes
entire section.
Sec. 9901.212(d)........... Restructures paragraph. Adds information
on the Secretary's ability to use OPM
qualification standards or establish
unique qualification standards for NSPS
positions. Deletes reference to Sec.
9901.513.
Sec. 9901.221(b)(1)........ Amends paragraph to delete reference to 5
U.S.C. 5346.
Sec. 9901.221(d)........... Restructures paragraph and incorporates
material previously found at Sec.
9901.222(b) regarding retroactive
effective dates.
Sec. 9901.221(d)(1)........ Adds paragraph specifying retroactive
classification date requirements and
retroactive effective dates when Sec.
9901.221(d) is applicable.
[[Page 29887]]
Sec. 9901.221(d)(2)........ Adds paragraph specifying that the
employee must file an initial request
for review of the reduction in pay band
or adjusted salary within 15 days to be
eligible for retroactive corrective
action.
Sec. 9901.221(d)(3)........ Adds paragraph specifying that
retroactive date can be established only
if the appeal reversal is based on
duties and responsibilities performed at
the time of reduction.
Sec. 9901.221(e)........... Redesignates former paragraph (d) as
paragraph (e). Adds information to
specify notification requirements when a
classification action results in a
reduction in an employee's pay band or
adjusted salary.
Sec. 9901.222.............. Review of classification decisions.
Revises title for clarity.
Sec. 9901.222(b)........... Revises and restructures paragraph to
address what may not be appealed.
Sec. 9901.222(c)........... Adds paragraph to address handling of
employee claim that his or her official
position description is inaccurate.
Sec. 9901.222(d)........... Relocates language found in paragraph (c)
of the current regulations in proposed
paragraph (d). Moves language formerly
found in paragraph (d) of the current
regulations to Sec. 9901.224(d).
Sec. 9901.222(e)........... Revises paragraph to provide that a
determination under Sec. 9901.222 will
be based on criteria issued by the
Secretary.
Sec. 9901.223.............. Appeal to DoD for review of
classification decisions. Adds new Sec.
9901.223 outlining DoD classification
appeal process.
Establishes and explains
employee right to representation.
Establishes the DoD
classification appeals process.
States the binding nature of DoD
appeal decisions.
Establishes employee and agency
cancellation provisions.
Sec. 9901.224.............. Appeal to OPM for review of
classification decisions. Adds new Sec.
9901.224 describing OPM's
classification appeal process.
Sec. 9901.231(a)........... Introduction to conversion section.
Amends paragraph to delete reference to
a prevailing rate system. Adds cross
reference to Sec. 9901.371, which
describes how to set an employee's pay
at conversion.
Sec. 9901.231(b)........... Implementing issuances. Adds language
specifying that implementing issuances
will include work level conversion
tables that will be used to convert
employees to an NSPS pay band. Deletes
language regarding employees with grade
retention immediately before conversion.
This subject is now addressed in Sec.
9901.231(d).
Sec. 9901.231(c)........... Temporary promotion prior to conversion.
Adds paragraph to clarify that an
employee on a temporary promotion
immediately prior to conversion of the
temporary position into NSPS must be
returned to his or her permanent
position before processing the
conversion.
Sec. 9901.231(d)........... Grade retention prior to conversion. Adds
paragraph to clarify that employees who
are entitled to grade retention
immediately before conversion will have
their NSPS pay band set using the actual
grade of the employee's current
position--not the retained grade.
------------------------------------------------------------------------
Pay and Pay Administration--Subpart C
This subpart provides DoD with authority to establish an NSPS pay
system in lieu of the GS pay system or other pay systems that would
apply to employees but for coverage under NSPS. The subpart has been
revised to (1) incorporate changes in the National Defense
Authorization Act (NDAA) for Fiscal Year 2008; (2) add more detailed
rules drawn from existing NSPS implementing issuances; (3) make policy
changes in certain areas; and (4) make technical changes and
improvements. Key changes to this subpart include (1) adding a
provision to define what constitutes a ``rate of pay'' for the purposes
of applying 5 U.S.C. 9902(e)(9) (this change is explained in the Table
of Changes); (2) adding regulations regarding pay limitations; (3)
revising rules on NSPS general salary increases (including changes to
comply with the NDAA); (4) revising standard local market supplements
to be generally equivalent to GS locality pay (as required by the
NDAA); (5) adding detailed rules regarding performance payouts from pay
pools and other performance-related payments; (6) adding detailed pay
administration rules; (7) establishing detailed rules regarding premium
pay under NSPS (including identification of specific modifications to
standard title 5 premium pay rules); (8) adding more detailed rules on
conversions into the NSPS pay system; and (9) establishing new rules
regarding conversions out of the NSPS pay system. Modifications to this
subpart reflect the unique pay-banding architecture of NSPS; enhance
management's flexibilities to respond more competitively to labor
markets; facilitate pay setting upon movements between different pay
systems; promote performance-based pay; provide the flexibility to
facilitate the Department's ability to accomplish its diverse missions;
and, in some cases, streamline and simplify pay administration rules.
Throughout this subpart, the terms ``base salary'' and ``adjusted
salary'' are used. The use of the term ``salary'' is consistent with
the terminology that has been used in NSPS since its inception. It is
meant to capture the concept of continuing pay, excluding premium pay,
bonuses, or other forms of variable pay. The term ``base salary''
refers to base or basic pay excluding any local market supplement. The
term ``adjusted salary'' refers to an adjusted rate of basic pay that
includes any applicable local market supplement.
The following Table of Changes lists, by specific regulatory
section, a brief description of each significant change.
----------------------------------------------------------------------------------------------------------------
Citation Description of proposed change
----------------------------------------------------------------------------------------------------------------
Sec. 9901.301.............. Purpose. Modifies to provide reference to waivers listed under Sec. 9901.303.
Sec. 9901.302.............. Prevailing rate employees. Deletes paragraph Sec. 9901.302(b)(2) related to
waiver of the statutory provisions establishing pay systems for prevailing rate
employees, consistent with 5 U.S.C. 9902(b)(4). Also deletes paragraph (c) to
clarify that all employees in the NSPS classification and pay system are
automatically covered by the premium pay provisions in Sec. Sec. 9901.361
through 9901.364, as applicable.
Sec. 9901.303(a)(2)........ Premium pay. Adds a reference to 5 U.S.C. 5544 (dealing with premium pay for
prevailing rate employees) as an additional exception to the authority to waive
the premium pay provisions in 5 U.S.C. chapter 55, subchapter V.
Sec. 9901.303(b)........... Prevailing rate employees. Adds a paragraph referencing 5 U.S.C. 5341-5349
(dealing with prevailing rate employees) to the list of provisions in 5 U.S.C.
chapter 53 that may not be waived.
[[Page 29888]]
Sec. 9901.303(c)........... Student loan repayments. Revises existing paragraph to limit the Secretary's
authority to modify the student loan repayment benefit provisions in 5 U.S.C.
5379. If necessary to address critical hiring needs, the Secretary may modify
the minimum service period and the limitations on the amount of student loan
repayment benefits.
Sec. 9901.304.............. Definitions. Adds definitions for the terms adjusted salary, base salary,
contributing factor, premium pay, retained rate, and sub pay pool. Also, adds
additional cross references to various terms that are defined in subpart A.
Makes minor changes in various definitions to use the terms ``base salary'' and
``adjusted salary'' (which are currently used in NSPS implementing issuances).
(Also, throughout the subpart, the terms ``base salary'' and ``adjusted salary''
are used as appropriate.) Revises definition of modal rating so that the group
of employees used in determining the modal rating is the entire pay pool, not
just a pay band within a pool. Revises definition of performance share value to
specify that a share value is always computed as a percentage. Adds sentence to
definition of standard local market supplement to conform with 5 U.S.C.
9902(e)(8)(A). Revises definition of targeted local market supplement to clarify
that targeted local market supplements apply in place of any lower standard
market supplement that is otherwise applicable. Makes minor changes in other
definitions.
Sec. 9901.305.............. Rate of pay. Deletes former Sec. 9901.305 and adds a new section providing an
explanation of what it means to establish and adjust a ``rate of pay'' in the
context of 5 U.S.C. 9902(e)(9). Under that section of law, ``any rate of pay
established or adjusted in accordance with [5 U.S.C. 9902] shall be non-
negotiable, but shall be subject to procedures and appropriate arrangements of
[5 U.S.C. 7106(b)(2)-(3)].'' It is appropriate that NSPS regulations issued
under authority of 5 U.S.C. 9902(a) address section 9902(e)(9) since section
9902(b) requires that the system established under section 9902(a) meets certain
conditions, including the condition in section 9902(b)(5). Section 9902(b)(5)
states that collective bargaining is subject to any ``limitation on
negotiability established pursuant to law,'' which would include the limitation
in section 9902(e)(9).
Proposed Sec. 9901.305 defines the term ``rate of pay'' to include (1) various
pay rates applicable to individual employees (i.e., base salary rate, local
market supplement rate, and overtime and other premium pay rates), (2) the pay
rates that constitute the structure of the pay system, including the amount or
level of those rates and the applicability conditions that define the type and
coverage of each rate (including range minimums and maximums, control points,
local market supplements, general limitations on maximum base salary or adjusted
salary rates, and premium pay rates), and (3) the percentage rate of total base
salary payroll representing the portion of a pay pool devoted to performance pay
increases. The term ``rate of pay'' encompasses payments that are paid on a
recurring basis at an established level or amount. Thus, variable one-time
bonuses are not included.
A rate of pay cannot be understood as simply an amount. A rate amount only has
meaning in the context of the required set of conditions that define what the
rate is and when it applies. Any rate amount is inseparably connected to a set
of defining conditions that determine when employees may receive that rate
amount. In other words, one cannot establish or adjust a rate of pay for
employees without taking into account both the amount of the rate and the
required conditions defining applicability of the type and amount of pay in
question. For example, it is impossible to establish a local market supplement
by merely establishing the percentage amount of that supplement. For the local
market supplement to have any meaning, the establishment of the supplement
necessarily requires the establishment of the geographic area in which that
supplement will apply. Similarly, establishing or adjusting the minimum rate of
a band requires that the rate be connected to a particular band that covers a
defined group of employees. Also, establishing a new category of hazardous duty
pay requires establishing the type of hazardous conditions that are linked to a
given percentage rate. Accordingly, Sec. 9901.305 makes clear that, as far as
the rates that comprise the pay structure are concerned, a ``rate of pay'' is
comprised of two inseparable components or elements: (1) The intrinsic
applicability conditions that define what the rate of pay is and to whom it
applies and (2) the amount or level of the rate. Both the amount and the
applicability conditions of a rate of pay may be established or adjusted.
Sec. 9901.311.............. Major Features. Amends to reflect (1) the use of the term ``salary'' instead of
``pay'', (2) changes resulting from implementation of NDAA for Fiscal Year 2008
(Public Law 110-181, January 28, 2008) in the area of local market supplements
and general salary increases, and (3) a DoD policy change to delink general
salary increases from adjustments in the minimum rate of the band.
Sec. 9901.312.............. Maximum rates. Replaces former Sec. 9901.312 with a revised section, which
establishes a maximum limitation or cap on adjusted salary rates for NSPS
employees (excluding doctors and dentists) equal to the rate for level IV of the
Executive Schedule plus 5 percent. In addition, the revised section provides the
Secretary with authority to establish a higher adjusted salary limitation for
defined categories of employees. Use of this authority is subject to
coordination with OPM under Sec. 9901.105.
Sec. 9901.313.............. Aggregate compensation limit. Adds a new section to establish rules governing
aggregate compensation limits. Normally, the limit is equal to the rate for
level I of the Executive Schedule; however, in special circumstances, the
Secretary may establish a cap equal to the Vice President's annual salary for
specified categories of employees (subject to coordination with OPM). A special
limitation tied to the President's salary applies to doctors and dentists,
consistent with the similar pay limit for Department of Veterans Affairs doctors
and dentists under title 38.
Sec. 9901.314.............. Compensation comparability. Revises Sec. 9901.314 (formerly Sec. 9901.313) to
change references to calendar year 2008 to calendar year 2012, consistent with
paragraphs (4)-(5) of new section 9902(e) in title 5, United States Code, as
amended by section 1106 of Pub. L. 110-181.
Sec. 9901.321(c)........... Control points. Adds a new paragraph (c) to address control points, which were
previously addressed solely in Sec. 9901.342(d). This makes clear that control
points (i.e., limitations on pay setting and pay progression within a pay band
that apply to specified groups of similar positions) are part of the structure
of the pay system. The new paragraph includes a listing of the factors that may
be considered in establishing control points: mission requirements, budget,
labor market factors, and benchmarks based on duties, responsibilities,
competencies, qualifications, and performance.
Sec. 9901.322(a)........... Rate ranges. Clarifies that the term ``rate range'' refers to the range minimum
and range maximum.
[[Page 29889]]
Sec. 9901.322(e)........... Adjustment of maximum rates in conjunction with general salary increase. Adds
requirement that the maximum rate of all pay bands must be adjusted by no less
than the percentage amount of the NSPS general salary increase under Sec.
9901.323(a)(1) effective on the date of that increase. This rule ensures that
any eligible employee will receive the full amount of the NSPS general salary
increase under Sec. 9901.323(a)(1). Other general salary increases under Sec.
9901.323 could be less than the increase in the band maximum, in which case the
general salary increase would be limited by the band maximum.
Sec. 9901.323(a)........... General salary increase. Revises Sec. 9901.323 to provide that general salary
increases are no longer linked to increases in the minimum rate of an employee's
rate range. Instead general salary increases for employees in various bands will
be determined separately, subject to the rules in this section. This section
also incorporates in Sec. 9901.323(a)(1) the new statutory requirement in 5
U.S.C. 9902(e)(7), as enacted by section 1106 of Pub. L. 110-181. Under section
9902(e)(7), all eligible employees (i.e., all employees except those with an
unacceptable performance rating) in all NSPS pay bands are entitled to a general
salary increase at the time of a GS general pay increase under 5 U.S.C. 5303,
and that increase may not be less than 60 percent of the GS general pay
increase. Under these proposed regulations, the NSPS general salary increase
would be the same percentage for all eligible employees, except that the
increase for retained rate employees would be fixed at 60 percent of the GS
general pay increase (or lowest permitted amount established by law). As
required by section 9902(e)(7), the portion of the GS general pay increase
amount that is not provided as an NSPS general salary increase must be allocated
to NSPS pay pool funding for the purpose of increasing base salary rates on the
basis of employee performance. For example, if the GS general pay increase is
2.5 percent and the NSPS general salary increase for eligible employees in all
pay bands is 1.5 percent (60 percent of GS general pay increase), the balance of
1.0 percent would be added to the pay pool and used to fund performance-based
base salary increases.
Proposed new Sec. 9901.323(a)(2) makes clear that the Secretary may provide
additional NSPS general salary increases for all eligible employees (except
retained rate employees) in a designated occupational series in a pay band at
other times to address labor market conditions, staffing difficulties, or
mission priorities. This authority is subject to coordination with OPM under
Sec. 9901.105. These additional general salary increases are not system-wide
increases, but instead are applied as needed. The amount and timing of the
increases (if any) may vary by employee category. (Under current regulations,
the Secretary could give varying general salary increases for employees in
various bands by adjusting the band minimum rates by varying amounts, since
adjustments in band minimum rates currently drive general salary increases;
thus, a similar flexibility already exists.)
Sec. 9901.323(b)........... Unacceptable performers. Revises paragraph (b) to provide that an employee who is
denied a general salary increase based on an unacceptable performance rating,
but who receives a rating above unacceptable for a subsequent appraisal period,
is eligible to receive the next general salary increase occurring on or after
the date the employee is given a rating of record above unacceptable. For
example, if an employee is denied a general salary increase under Sec.
9901.323(a)(1) in a given January, and if the next general salary increase
occurs in the next January, then the employee will be eligible for that next
increase if he or she receives a rating of record above unacceptable on or
before the effective date of that next January increase. The employee may not
receive the lost general salary increase on a delayed basis, even if the
employee receives a mid-cycle rating under Sec. 9901.412(b)(2).
Sec. 9901.323(c)........... Special additional increase. Provides the Secretary with discretionary authority
to provide a special additional salary increase for certain employees who are
ineligible for a performance payout, such as an employee without an NSPS rating
of record because he or she has not been in NSPS for the minimum 90-day period.
Eligible employees may receive the system-wide general salary increase under
Sec. 9901.323(a)(1) plus an additional increase equal to the difference
between the GS general pay increase and the NSPS general salary increase.
Retained rate employees are not eligible for this additional increase.
Sec. 9901.323(d)........... Increases limited by band maximum. Provides that a general salary increase under
paragraph (a)(2) or paragraph (c) of Sec. 9901.323 may be applied only to the
extent that it does not cause an employee's base salary rate to exceed the
maximum rate of the employee's band or applicable control point.
Sec. 9901.323(e)........... Increase in conjunction with increase in band minimum. Provides that if the
adjustment of a pay band minimum rate causes the base salary of an employee with
a rating of record above unacceptable to fall below such minimum rate, the
employee's salary will be set at the pay band minimum rate.
Sec. 9901.331(b)........... Computation of local market supplements. Adds a new paragraph describing how
local market supplements are computed and are subject to a rate cap.
Sec. 9901.331(c)........... Official worksite. Adds a new paragraph providing that, in administering NSPS
local market supplements, DoD will use the same concept of official worksite as
used in the GS locality pay program, consistent with the requirements of 5
U.S.C. 9902(e)(8)(A), as enacted by section 1106 of Public Law 110-181.
Sec. 9901.331(d)........... Treatment of local market supplement as basic pay. Redesignates former Sec.
901.332(c) as new Sec. 9901.331(d).
Revises paragraph (d)(9) to clarify that a local market supplement is considered
basic pay at the point of conversion into or out of the NSPS pay system for the
purpose of applying the adverse action provisions in 5 U.S.C. chapter 75,
subchapter II. (See also Sec. Sec. 9901.351(g), 9901.371(d), and
9901.372(f).)
Deletes former paragraph (d)(10) dealing with treatment of local market
supplements as basic pay in determining internal NSPS payments and adjustments,
since the regulations for those NSPS payments and adjustments now clearly
address whether base salary or adjusted salary is used.
Revises paragraph (d)(11) (formerly (d)(12)) to clarify that other statutory
provisions must ``expressly'' address treatment of local market supplements as
basic pay to have an effect. Also, provides that other NSPS regulations may
address the basic pay issue.
Sec. 9901.332(a)........... General. Deletes existing paragraph (a) and replaces it with a new paragraph
explaining the relationship of standard and targeted local market supplements to
5 U.S.C. 9902(e)(8).
[[Page 29890]]
Sec. 9901.332(b)........... Standard local market supplements. Deletes existing paragraph (b) and replaces it
with a separate paragraph regarding standard local market supplements,
incorporating statutory requirements in 5 U.S.C. 9902(e)(8)(A), as enacted by
section 1106 of Public Law 110-181. Under section 9902(e)(8)(A), NSPS must
provide standard local market supplements in the same manner as GS locality pay
under 5 U.S.C. 5304 and 5304a. The proposed regulations give effect to this
provision by requiring that NSPS standard local market supplements (1) be the
same percentage amounts as GS locality payments, (2) be linked to the same
geographic areas established under the GS locality pay program, and (3) be based
on the same ``official worksite'' concept used in administering the GS locality
pay program. In addition, NSPS standard local market supplements will generally
be administered in other respects in a manner that parallels the administration
of GS locality payments (e.g., a higher targeted local market supplement trumps
a standard local market supplement just as a higher GS special rate supplement
trumps a GS locality payment), except when differences are required due to
differences between the NSPS and GS pay systems. For example, under NSPS,
adjusted salary rates (including any local market supplement) are generally
capped at the rate for level IV of the Executive Schedule plus 5 percent to
accommodate the 5-percent extension of certain base salary ranges, while GS
locality-adjusted rates are capped at the rate for level IV of the Executive
Schedule. Also, NSPS local market supplements are paid on top of a retained pay
rate, while GS locality pay is not. (Instead, locality pay is considered in
setting and adjusting a GS retained rate.) In addition, while GS locality pay
applies to all GS employees stationed in locality pay areas, NSPS standard local
market supplements are not applicable to physicians and dentists, since (1) they
are entitled to higher base salary and adjusted salary ranges to achieve
comparability with title 38 physicians and dentists in the Department of
Veterans Affairs and (2) their adjusted salary rates are designed to apply on a
worldwide basis with no variation based on location (consistent with title 38).
Sec. 9901.332(c)........... Targeted local market supplements. Replaces existing paragraph (c) with a new
paragraph regarding targeted local market supplements. Targeted local market
supplements are similar to GS special rate supplements. They are used to address
staffing problems associated with a specific category of employees. They are
payable when higher than any otherwise applicable standard local market
supplement. Language formerly under paragraph (c) moves to Sec. 9901.331(d).
Sec. 9901.333.............. Setting and adjusting local market supplements. Adds a new paragraph (a) to
provide that standard local market supplements are set and adjusted consistent
with the setting and adjusting of GS locality payments, as required by 5 U.S.C.
9902(e)(8)(A). Also, merges former paragraphs (a) and (b) into a new paragraph
(b), which is revised to focus solely on targeted local market supplements.
Sec. 9901.334(b)........... Unacceptable performers. Revises paragraph (b) to provide that an employee who is
denied a local market supplement adjustment based on an unacceptable performance
rating, but who receives a rating above unacceptable for a subsequent appraisal
period, is entitled to the full amount of any applicable local market supplement
effective on the date of the first adjustment in that local market supplement
occurring on or after the effective date of that new rating of record, or, if
earlier, the effective date of an applicable general salary increase as
described in Sec. 9901.323(b).
Sec. 9901.341.............. Performance-based pay system. Modifies paragraph for editorial purposes.
Sec. 9901.342(a)........... Overview of performance payout section. Modifies paragraph (a)(1) to reflect the
current implementation state of the NSPS performance-based pay system.
Modifies paragraph (a)(2) to:
(1) Delete reference to ``a more current rating of record, consistent with the
former Sec. 9901.409(b)'' (while the provision for a mid-cycle rating of
record still exists under Sec. 9901.412(b)(2), specific reference to this type
of rating of record is not required for that rating to serve as the basis for a
performance increase);
(2) Limit circumstances for which an employee who is not eligible for a rating of
record may receive a payout to the circumstances prescribed in this regulation;
and
(3) Change cross reference to paragraphs (f) and (g) to reflect new location in
paragraphs (i) and (j) and to incorporate reference to additional payout
situations in paragraphs (k) and (l).
Deletes paragraph (a)(3) as found in current regulations. This material is
replaced with more specific information on pay pool officials in proposed Sec.
9901.342(c), (d), and (e).
Sec. 9901.342(b)........... Performance pay pools. Modifies paragraph (b)(1) to incorporate language
regarding fair and consistent treatment of employees in the pay pool process,
which is found in current regulations at Sec. 9901.342(a)(3).
Paragraphs (b)(2) and (b)(3) provide uniform and consistent criteria governing
the establishment of performance pay pool structures, including sub pay pools.
Paragraph (b)(4) contains language previously found in paragraph (b)(2).
Paragraph (b)(5) states the requirement for higher-level approval of pay pool
funding floors or ceilings.
Sec. 9901.342(c)........... Pay Pool Panel. Adds a new paragraph describing the roles and responsibilities of
the Pay Pool Panel.
Sec. 9901.342(d)........... Pay Pool Manager. Adds a new paragraph describing the roles and responsibilities
of the Pay Pool Manager.
Sec. 9901.342(e)........... Performance Review Authority. Adds a new paragraph describing the roles and
responsibilities of the Performance Review Authority.
Sec. 9901.342(f)........... Performance shares. Relocates and modifies language found in current regulations
at Sec. 9901.342(c). The modifications include:
A table assigning a uniform range of shares to rating levels 3 through
5;
A uniform list of criteria establishing parameters for determination of
share assignment within a range; and
Requirement that Pay Pool Managers and Panels review recommendations for
share assignment for consistent application of criteria across a pay pool.
Sec. 9901.342(g)........... Performance payout. Relocates and modifies language found in current regulations
at Sec. 9901.342(d). The modifications include:
Addition of the formula for determining the value of a share;
Addition of the formula for determining the dollar value of an
individual employee's payout;
Addition of a uniform list of criteria that are the only factors that
may be considered in determining distribution of a pay pool payout between bonus
and base salary increase;
Clarification of effective date of a performance-based pay pool payout
under this section;
Addition of uniform eligibility criteria to receive a performance-based
payout under Sec. 9901.342; and
[[Page 29891]]
Modifications to language concerning performance payouts for employees
on retained pay, which clarify that the performance payout must be in the form
of a bonus and that the amount of the performance payout is based on the maximum
rate of the pay band to which the employee is assigned.
Sec. 9901.342(h)........... Proration of performance payouts. Relocates and modifies language found in
current regulations at Sec. 9901.342(e). Modifies cross-referenced paragraphs
to reflect redesignations made in this proposed regulation.
Sec. 9901.342(i)........... Adjustments for employees returning after performing honorable service in the
uniformed services. Relocates and modifies language found in current regulations
at Sec. 9901.342(f). Modifies language to indicate that performance payouts
will be based on an employee's ``NSPS'' rating of record instead of the ``DoD''
rating of record. This modification recognizes the potential inequities which
may occur in comparing the NSPS and non-NSPS performance rating systems.
Additionally, clarifies eligibility for performance bonus under specified
circumstances and bar on prorating of pay pool payouts due to leave without pay
or absence to perform uniformed service under 38 U.S.C. 4301 and Sec. 353.102
of this chapter.
Sec. 9901.342(j)........... Adjustments for employees returning to duty after being in workers' compensation
status. Relocates and modifies language found in current regulations at Sec.
9901.342(g). Modifies language to indicate that performance payouts will be
based on an employee's ``NSPS'' rating of record instead of the ``DoD'' rating
of record. This modification recognizes the potential difficulties which may
occur in comparing the NSPS and non-NSPS performance rating systems.
Additionally, clarifies eligibility for performance bonus under specified
circumstances and bar on prorating of pay pool payouts due to leave without pay
due to work-related injury under 5 U.S.C. chapter 81, subchapter I.
Sec. 9901.342(k)........... Adjustments for employees in special circumstances. Adds a new paragraph
providing a method of determining a performance payout for employees, who due to
performance of union-related activities or absence while on paid approved leave,
are unable to meet the minimum period for a performance rating of record.
Sec. 901.342(l)............ Adjustments for employees returning from temporary assignments outside of NSPS or
from long-term training for which no NSPS performance plan was assigned. Adds a
new paragraph providing a method of determining performance pay adjustments for
employees who either did not meet the minimum period of performance due to
temporary assignment outside of NSPS or long-term training or who met the
minimum period and received a rating of record, but were outside of NSPS on the
effective date of the payout.
Sec. 9901.343.............. Pay reduction based on unacceptable performance and/or conduct. Modifies section
to limit the range of a pay reduction based on unacceptable performance and/or
conduct from 1-10 percent of base salary to 5-10 percent of base salary.
Additionally, updates cross-referenced paragraphs to reflect modifications to
subpart C.
Sec. 9901.344.............. Other performance payments. Modifies section by changing title of Extraordinary
Pay Increases (EPI) to Extraordinary Performance Recognition (EPR) and
establishing uniform eligibility criteria and methods of payment for
Extraordinary Performance Recognition (EPR) and Organizational Achievement
Recognition (OAR) payments.
Sec. 9901.345.............. Accelerated Compensation for Developmental Positions. Modifies section by
establishing uniform eligibility criteria for Accelerated Compensation for
Developmental Positions (ACDP), limiting the form of an ACDP payment to that of
a base salary increase, and adding general limits on the amount of ACDP that may
be provided.
Sec. 9901.351.............. General rules governing pay administration. Adds a new section providing general
pay setting rules.
Sec. 9901.351(a)........... Introduction. Provides that base salary rates are used in pay administration,
except when specifically otherwise provided.
Sec. 9901.351(b)........... Geographic recalculation. Provides for a geographic recalculation on pay setting
for movements from one geographic area to another geographic area, consistent
with the geographic conversion principle described in 5 CFR 531.205. This
provision is used in special circumstances when adjusted salary rates are used
in applying certain pay administration rules.
Sec. 9901.351(c)........... Within-grade increase (WGI) adjustment equivalent. Provides for a WGI equivalent
for employees moving into NSPS, consistent with the conversion process in Sec.
9901.371, under specified conditions. Provides for a WGI equivalent for
employees moving into NSPS through a management-directed action, including a
management-directed reassignment, realignment, or placement via the Priority
Placement Program, Reemployment Priority List, or Interagency Career Transition
Assistance Plan. An employee placed in an NSPS position through an employee-
initiated reassignment may receive this same WGI equivalent at the discretion of
the authorized management official.
Sec. 9901.351(d)........... Minimum rate. Relocates language (with minor modifications) found in current
regulations at Sec. 9901.356(a). This provision states that an employee's base
salary may not be less than the minimum rate of the employee's pay band, unless
the employee does not receive a pay increase under Sec. 9901.323 because of an
unacceptable rating.
Sec. 9901.351(e)........... Maximum rate. Relocates language (with minor modifications) found in current
regulations at Sec. 9901.356(b). This provision states that an employee's base
salary may not be more than the maximum rate of the employee's pay band, unless
provided for under the pay retention provisions in Sec. 9901.356.
Sec. 9901.351(f)........... Pay periods and hourly rates. Relocates language (with minor modifications) found
in current regulations at Sec. 9901.356(c). This provision states that the
Secretary will follow the rules for establishing pay periods and computing pay
rates in 5 U.S.C. 5504 and 5505.
Sec. 9901.351(g)........... Rate comparisons upon movement to an NSPS position. Provides for the setting of
an employee's NSPS rate of basic pay when the employee moves to an NSPS position
by a management-directed action, consistent with the conversion rule in Sec.
9901.371(d).
Sec. 9901.351(h)........... Adjustment of teacher annual rates. Provides authority for an adjustment of up to
20 percent when an individual leaves a teaching position under 20 U.S.C. 901 and
moves to NSPS. This adjustment is for the purpose of setting the individual's
NSPS pay based on that adjusted rate. This adjustment will take into account the
shorter work year applicable to a teacher position.
Sec. 9901.352.............. Setting an employee's starting pay. Revises section (formerly Sec. 9901.351)
providing specific rules to be applied in determining an employee's starting pay
for individuals who are newly appointed or reappointed to the Federal service.
Sec. 9901.352(a)........... Considerations in setting starting pay. Identifies factors to be considered in
setting starting pay for a newly appointed or reappointed employee.
[[Page 29892]]
Sec. 9901.352(b)........... Definitions. Defines the terms newly appointed and reappointed and clarifies the
term Federal service. Clarifies that to be considered as reappointed, an
employee must have been separated from Federal service for at least 1 full
workday immediately before employment in an NSPS position.
Sec. 9901.353.............. Setting pay upon reassignment. Revises section (formerly Sec. 9901.352)
providing specific rules to be applied in determining an increase or decrease
under a reassignment action.
Sec. 9901.353(a)........... General rules governing reassignment increases. Makes minor changes in
terminology to use the term ``base salary''. Identifies factors to be used in
making decision to grant a reassignment increase. Provides that an employee who
is reassigned through reduction-in-force procedures will not incur a reduction
in base salary and is not eligible for an increase in base salary, except to
place the base salary at the minimum rate of the new pay band.
Sec. 9901.353(b)........... 5 percent increase upon reassignment. Provides for an employee's base salary to
be increased by up to 5 percent and provides for procedures in setting pay upon
a reassignment. The authorized management official may decrease an employee's
base salary by any amount determined prior to the reassignment and with the
employee's agreement, as long as the employee's base salary does not drop below
the minimum of the assigned pay band. Provides for a higher-level approval of
any increase or decrease upon a reassignment. Clarifies that an employee may
receive only a total of a 5 percent cumulative increase to base salary as a
result of employee-initiated action in any 12-month period, unless an exception
is approved by a higher-level official.
Sec. 9901.353(c)........... Adjusted salary used for an employee-initiated reassignment. Provides for use of
adjusted salary in the pay setting of an employee on a voluntary reassignment.
When an employee is voluntarily reassigned from a position with a targeted local
market supplement or from a non-NSPS position (e.g., GS, Federal Wage System,
Nonappropriated Fund), the authorized management official will set pay
considering the employee's adjusted salary (including any applicable locality
pay, special rate supplement, or other equivalent supplement) and any
physicians' comparability allowance payable for the position held prior to the
reassignment. If the NSPS adjusted salary is increased beyond the amount of the
employee's current adjusted salary plus any physicians' comparability allowance,
the percentage of the increase is counted toward the 12-month limitation. When
an employee covered by a targeted local market supplement is changed to a new
location where a different local market supplement and/or pay schedules apply,
the employee's current adjusted salary must be recalculated in accordance with
the rules at Sec. 9901.351(b).
Sec. 9901.353(d)........... Management-directed reassignment. Provides for the adjusted salary to be used in
the pay setting of an employee on a management-directed reassignment. There are
no limits to the number of times an employee may be reassigned by management,
and the employee is eligible for an increase of up to 5 percent with each
reassignment. Any increase associated with a management-directed reassignment
does not count toward the 12-month limitation.
Sec. 9901.353(e)........... Adjusted salary used for a management-directed reassignment. Provides for use of
the adjusted salary in the pay setting of an employee on a management-directed
reassignment. When an employee is reassigned by management-directed action from
a position with a targeted local market supplement or from a non-NSPS position
(e.g., GS, Federal Wage System, Nonappropriated Fund), the authorized management
official will set pay considering the employee's adjusted salary (including any
applicable locality pay, special rate supplement, or other equivalent
supplement) and any physicians' comparability allowance payable for the position
held prior to the reassignment. If the NSPS adjusted salary is increased beyond
the amount of the employee's current adjusted salary plus any physicians'
comparability allowance, the percentage of the increase is counted toward the 12-
month limitation. When an employee covered by a targeted local market supplement
is changed to a new location where a different local market supplement and/or
pay schedules apply, the employee's current adjusted salary must be recalculated
in accordance with the rules at Sec. 9901.351(b).
Sec. 9901.353(f)........... Mandatory reduction in pay on reassignment. Provides for a mandatory reduction of
at least 5 percent and up to 10 percent to an employee's base salary when an
employee is involuntarily reduced in pay via reassignment based on unacceptable
performance and/or conduct. This reduction may not cause an employee's base
salary to fall below the minimum rate of the employee's assigned pay band. An
employee's base salary may not be reduced more than once in a 12-month period
based on unacceptable performance, conduct, or both.
Sec. 9901.353(g)........... Expiration or termination of temporary reassignment. Provides that any increase
received while on temporary reassignment will be reversed upon return to the
employee's prior position. The employee's pay will then be reconstructed to
credit the employee with increases he/she would have received if not for the
temporary reassignment.
Sec. 9901.353(h)........... Reassigned to an NSPS supervisory position. Provides that any increase received
while on reassignment to a supervisory position will be reversed upon return to
the employee's prior position due to failure to complete a supervisory
probationary period. The employee's pay will then be reconstructed to credit the
employee with increases he/she would have received if not for the reassignment
to the supervisory position.
Sec. 9901.354.............. Promotion. Revises section (formerly Sec. 9901.353) providing specific rules to
be applied in determining an increase under a promotion action.
Sec. 9901.354(a)........... Setting pay upon promotion. Provides for an employee's base salary to be
increased from 6 percent not to exceed 12 percent and provides for procedures in
setting pay upon a promotion. Revises section to provide for a higher-level
approval for any increase above 12 percent. Incorporates the term ``base
salary''.
Sec. 9901.354(b)........... Criteria used for a promotion. Provides specific criteria used in determining an
increase under a promotion action.
Sec. 9901.354(c)(1)........ Temporary promotion made permanent. Provides that an employee's base salary will
remain unchanged when a temporary promotion is made permanent, and that no
additional increase will be provided.
Sec. 9901.354(c)(2)........ Expiration or termination of temporary promotion. Provides that any increase
received while on temporary promotion will be reversed upon return to the
employee's prior position. The employee's pay will then be reconstructed to
credit the employee with increases he/she would have received if not for the
temporary promotion.
Sec. 9901.354(d)(1)........ Promotion from pay retention. Addresses how pay is set for an employee on
retained pay who is repromoted to the pay band from which reduced (or comparable
band).
Sec. 9901.354(d)(2)........ Promotion calculation for pay retention. Addresses how an employee's retained
base salary will be used in calculating the promotion increase.
[[Page 29893]]
Sec. 9901.355.............. Setting pay upon reduction in band. Revises section (formerly Sec. 9901.354)
providing specific rules to be applied in determining an increase or decrease
for setting pay upon reduction in band.
Sec. 9901.355(a)........... General. Provides for an employee's base salary to be increased or decreased, and
provides procedures in setting pay upon a reduction in band.
Sec. 9901.355(b)........... Pay reduction. Provides authority to reduce an employee's base salary at least 5
percent and up to 10 percent on a reduction in band based on unacceptable
performance and/or conduct. This reduction may not cause an employee's base
salary to fall below the minimum rate of the employee's assigned pay band. An
employee's base salary may not be reduced more than once in a 12-month period
based on unacceptable performance, conduct, or both.
Sec. 9901.355(c)........... Pay increase. Provides for an employee's base salary to be increased by up to 5
percent, consistent with the reassignment increase procedures. An employee who
is reduced in band through reduction-in-force procedures or by placement via the
Priority Placement Program or Reemployment Priority List is not eligible for an
increase in base salary, except to place the base salary at the minimum rate of
the new pay band. Provides specific criteria used in determining an increase for
setting pay upon reduction in band.
Sec. 9901.355(d)........... Termination of temporary promotion. Provides that this section does not apply to
a reduction in band in connection with the termination of a temporary promotion;
instead, the rules in Sec. 9901.354(c)(2) apply.
Sec. 9901.355(e)........... Probationary period. Provides that any increase received while on promotion to a
supervisory position will be reversed upon return to the employee's prior
position due to failure to complete a supervisory probationary period. The
employee's pay will then be reconstructed to credit the employee with increases
he/she would have received if not for the promotion to the supervisory position.
Sec. 9901.356.............. Pay retention. Revises section (formerly Sec. 9901.355) providing specific
rules to be applied in determining an employee's entitlement to pay retention
and the factors in terminating pay retention. Incorporates the term ``base
salary''.
Sec. 9901.356(c)........... Period of pay retention. Clarifies that pay retention will be granted for a
period of 104 weeks.
Sec. 9901.356(d)........... Situations triggering eligibility. Identifies specific situations when an
employee under NSPS will be granted pay retention.
Sec. 9901.356(e)........... Optional pay retention. Provides for a higher-level approval of any additional
situations to grant pay retention.
Sec. 9901.356(f)........... Terminating conditions. Identifies specific situations when pay retention will
terminate under NSPS.
Sec. 9901.356(g)........... Pay setting upon termination. Provides that an employee's pay will be set at the
maximum rate of the pay band upon expiration of the 104-week period.
Sec. 9901.356(h)........... Pay adjustments after termination. Provides that an employee is eligible for rate
range adjustments and performance payouts upon termination of pay retention.
Sec. 9901.356(i)........... Situations when pay retention is not applicable. Identifies specific
circumstances when pay retention does not apply.
Sec. 9901.356(j)........... Performance payouts. Provides that an employee on pay retention will receive any
performance payouts in the form of bonuses, consistent with Sec.
9901.342(g)(8).
Sec. 9901.356(k)........... Pay adjustments during pay retention. Provides that employees on pay retention
are eligible for general salary increases under Sec. 9901.323(a)(1) and are
eligible for local market supplement adjustments.
Sec. 9901.356(l)........... Extension of 104-week time limit. Adds a new paragraph that allows for the 104-
week time limit on pay retention under NSPS to be extended by the length of time
that an employee is subject to a contingency operation or emergency.
Sec. 9901.356(m)........... Grandfather provision. Provides that an employee with a preexisting entitlement
to pay retention under 5 CFR part 536 before becoming covered by NSPS, or who
obtains the entitlement to pay retention upon becoming covered by NSPS, is
entitled to a retained rate without regard to the 104-week limit in Sec.
9901.356(c).
Sec. 9901.361(a)........... Introduction. Clarifies paragraphs providing waiver or modification of premium
pay provisions of 5 U.S.C. chapter 55, subchapter V, and adds reference to Sec.
Sec. 9901.363 and 9901.364, which establish new types of premium payments in
addition to those found in 5 U.S.C. chapter 55, subchapter V.
Sec. 9901.361(b)........... Provisions not waived or modified. Deletes existing paragraph (b) and replaces it
with separate sections, new Sec. Sec. 9901.362 through 9901.364. Adds new
paragraph (b) referencing 5 U.S.C. 5544 (dealing with premium pay for prevailing
rate employees) and 5 U.S.C. 5545b (dealing with firefighter pay) to clarify
that those premium pay provisions are not waived or modified.
Sec. 9901.361(c)........... Applicability of Fair Labor Standards Act. Deletes existing paragraph (c) and
replaces it with separate sections, new Sec. Sec. 9901.362 through 9901.364.
Adds new paragraph (c) to clarify that these regulations do not affect the
applicability of FLSA overtime pay provisions.
Sec. 9901.361(d)........... Applying regulations in 5 CFR part 550, subpart M. Clarifies that the reference
to ``locality pay'' in 5 CFR 550.1305(e) must be interpreted to be a reference
to a local market supplement. Clarifies that firefighters compensated under
subpart M are eligible for compensatory time off for travel or for religious
purposes and foreign language proficiency pay.
Sec. 9901.361(e)........... Physicians and dentists. Provides that physicians and dentists (in occupational
series 0602 and 0680, respectively) under NSPS are not eligible for premium pay
except for compensatory time off for religious observances.
Sec. 9901.361(f)........... Senior Executive Service. Provides that members of the Senior Executive Service
(SES) are ineligible for premium pay under NSPS, except for compensatory time
off for religious observances. This is consistent with the treatment of SES
members under the standard title 5 premium pay provisions.
Sec. 9901.362.............. Modification of standard provisions. Adds a new section that identifies the
modifications to the title 5 premium pay provisions and related regulations and
any specific additional requirements.
Sec. 9901.362(a)........... Premium pay limitations. Establishes the rules governing the premium pay
limitations. The premium pay caps are consistent with title 5. In special
circumstances, the Secretary may establish a higher annual premium pay cap equal
to the Vice President's annual salary for specified categories of employees and
situations on a time-limited basis.
[[Page 29894]]
Sec. 9901.362(b)........... Overtime pay. Identifies requirements and modifications pertaining to the
overtime pay (including compensatory time off) provisions in 5 U.S.C. 5542 and
5543 and related regulations. The proposed rule modifies the overtime hourly
rate cap that applies to FLSA-exempt employees and the method for crediting
overtime hours. In addition, time in a travel status does not constitute hours
of work for overtime pay purposes unless actual work is performed; however,
qualifying travel time not treated as hours of work will generate compensatory
time off for travel hours under Sec. 9901.362(j). Finally, any FLSA-exempt
employee may be required to receive compensatory time off in lieu of overtime
pay for an equal amount of overtime work.
Sec. 9901.362(c)........... Night pay. Identifies the modifications to the night pay provisions in 5 U.S.C.
5545(a) and (b) and related regulations. An employee who performs overtime work
at night is entitled to night pay regardless of whether the overtime work is
scheduled before or after the administrative workweek begins. Night pay is not
payable during paid absences, except for certain types listed in paragraph
(c)(2).
Sec. 9901.362(d)........... Sunday pay. Identifies the modifications to the Sunday pay provisions in 5 U.S.C.
5546 and related regulations. Work for which Sunday pay is payable is limited to
applicable hours of work that are actually performed on a Sunday. In other
words, Sunday pay continues to apply to nonovertime hours of work performed by
full-time employees, not to exceed 8 hours for any daily tour of duty (unless
the employee is on a compressed schedule); however, unlike the standard title 5
provision, non-Sunday hours within a daily tour of duty that includes Sunday
hours do not count as Sunday work.
Sec. 9901.362(e)........... Pay for holiday work. Identifies the modifications to the holiday premium pay
provisions in 5 U.S.C. 5546 and related regulations. An employee receives pay
that is twice the employee's adjusted salary hourly rate for each hour worked on
a holiday, including overtime hours. If hours worked on a holiday are overtime
hours, the overtime pay is contained within the double-time holiday pay rate.
Sec. 9901.362(f)........... Standby duty pay. Identifies requirements and modifications for the standby duty
provisions in 5 U.S.C. 5545(c)(1) and related regulations. Limits coverage to
firefighters ineligible for coverage under subpart M of part 550 and to
emergency medical technicians not involved in fire protection activities unless
the Secretary extends coverage to other occupations. Modifies the standby duty
pay formula by using an employee's adjusted salary to compute standby duty pay.
Standby pay attributable to the rate beyond GS-10, step 1, is not creditable for
retirement purposes. Also bars receipt of any other premium pay for an employee
receiving standby duty pay.
Sec. 9901.362(g)........... Administratively uncontrollable overtime pay. Provides that the administratively
uncontrollable overtime pay provision in 5 U.S.C. 5545(c)(2) is waived and is
not applicable to NSPS employees.
Sec. 9901.362(h)........... Law enforcement availability pay. Provides that the law enforcement availability
pay provisions in 5 U.S.C. 5545a and related regulations apply.
Sec. 9901.362(i)........... Pay for duty involving physical hardship or hazard. Identifies requirements and
modifications in connection with the hazardous duty pay provisions in 5 U.S.C.
5545(d) and related regulations. Permits the Secretary to establish new
categories of hazardous duty pay (HDP), subject to OPM approval as required by
Sec. 9901.106(c). In determining eligibility for HDP, the occupational safety
and health standards (OSHA) consistent with the permissible exposure limit (PEL)
are generally used. An employee is eligible to receive HDP when he or she
performs an assigned duty (as listed in Appendix A) and preventive measures have
not reduced the element of hazard below the PEL. However, HDP may not be paid to
employees in occupations or jobs in which unusual physical risk is inherent.
Sec. 9901.362(j)........... Compensatory time off for travel. Identifies the requirements and modifications
in connection with the compensatory time off for travel provisions in 5 U.S.C.
5550b and related regulations. Employees who are required to travel away from
their official worksite when such time is not otherwise compensable are eligible
for compensatory time off. If an employee is required to travel on a nonworkday,
commuting time more than 1 hour beyond the employee's normal commuting time is
creditable travel time. Also provides the procedures for crediting compensatory
time off for travel and the treatment of unused compensatory time off when DoD
employees move between NSPS and non-NSPS positions.
Sec. 9901.362(k)........... Compensatory time off for religious observances. Identifies requirements and
modifications in connection with the compensatory time off for religious
observances provisions in 5 U.S.C. 5550a and related regulations. Prohibits
payment for any unused religious compensatory time off under any circumstances.
Sec. 9901.362(l)........... Air traffic controller differential. Provides that the air traffic controller
differential provisions in 5 U.S.C. 5546a are waived and not applicable to NSPS
employees, except for paragraphs (a)(1) and (d) of that section. Authorizes the
payment of a 5-percent differential to eligible air traffic controllers. In
addition, the Secretary may extend a 10-percent differential to air traffic
controllers who perform on-the-job training under certain circumstances.
Sec. 9901.363(a)........... Coverage under premium pay provisions for health care personnel. Adds a new
section that provides premium payments for eligible DoD ``health care
personnel'' (as defined in this paragraph) covered under NSPS. These payments
include on-call premium pay, night pay, and pay for weekend duty, consistent
with parallel provisions that apply to Department of Veterans Affairs health
care personnel under title 38, United States Code.
Sec. 9901.363(b)........... On-call premium pay. Allows heads of DoD Components to authorize on-call premium
pay for officially scheduled ``on-call'' time when health care personnel are not
otherwise compensated for that on-call time. An employee officially scheduled to
be on-call is paid 15 percent of his or her adjusted salary hourly rate for each
hour of on-call status. The proposed rule provides the pay administration rules
for on-call pay.
Sec. 9901.363(c)........... Night pay for health care personnel. Authorizes night pay for eligible employees
who are scheduled to work between 6 p.m. and 6 a.m. An employee is paid 10
percent of his or her adjusted salary hourly rate for each hour worked between 6
p.m. and 6 a.m. This rate is applied to the entire tour if the employee works 4
or more hours between 6 p.m. and 6 a.m. The proposed rule provides the pay
administration rules for night pay.
Sec. 9901.363(d)........... Pay for weekend duty for health care personnel. Authorizes pay for weekend duty
for eligible employees who are scheduled to work a tour of duty, any part of
which falls in the 2-day period between midnight Friday and midnight Sunday. An
employee will be paid 25 percent of his or her adjusted salary hourly rate for
each hour of work during that period. The proposed rule provides the pay
administration rules for pay for weekend duty.
[[Page 29895]]
Sec. 9901.364.............. Foreign language proficiency pay. Adds a new section to provide that NSPS
employees may be paid foreign language proficiency pay (FLPP) if certified as
proficient in foreign languages identified as necessary for national security
interests and not in receipt of FLPP under 10 U.S.C. 1596 and 10 U.S.C. 1596a.
FLPP is a competency-based premium pay which the Department can pay an employee
to maintain his or her skills in a critical language regardless of job. The
proposed rule specifies the conditions for payment.
Sec. 9901.371.............. Conversion into NSPS pay system. Consolidates all provisions related to
conversion into the NSPS pay system, including provisions found in Sec. Sec.
9901.371 and 9901.373 in the current regulations. Adds additional detailed rules
as noted by paragraph below.
Sec. 9901.371(a)........... Introduction. Provides cross reference to Sec. 9901.231, which contains
information on determining an employee's NSPS pay band upon conversion into
NSPS. Corrects cross reference to reflect changes made by these proposed
regulations.
Sec. 9901.371(b)........... Implementing issuances. Addresses the Secretary's authority to issue implementing
issuances prescribing policies and procedures for conversions into NSPS.
Sec. 9901.371(c)........... Bar on pay reduction. Incorporates material previously found at Sec.
9901.373(a). Clarifies that simultaneous actions must be processed before
applying this rule, consistent with Sec. 9901.371(e).
Sec. 9901.371(d)........... Rate comparison. Incorporates and clarifies material previously found at Sec.
9901.373(b).
Sec. 9901.371(e)........... Simultaneous actions. Incorporates material previously found at Sec.
9901.373(c).
Sec. 9901.371(f)........... Temporary promotion prior to conversion. Incorporates material previously found
at Sec. 9901.373(d), including the requirement to reconstruct pay in the
permanent position of record prior to conversion.
Sec. 9901.371(g)........... Grade retention prior to conversion. Addresses how to treat employees who were on
grade retention prior to conversion.
Sec. 9901.371(h)........... Pay retention prior to conversion. Addresses how to treat employees who were on
pay retention prior to conversion.
Sec. 9901.371(i)........... Conversion adjustments. Provides that the only base salary adjustments that may
be made in conjunction with conversion are those listed in paragraphs (j)
through (m).
Sec. 9901.371(j)........... Within-grade increase (WGI) adjustment. Provides for a prorated within-grade
adjustment for eligible GS employees converting into NSPS to account for the
time since their last equivalent pay increase.
Sec. 9901.371(k)........... Special increase for employees on temporary promotion prior to conversion.
Authorizes management to preserve an employee's rate of basic pay held on a
temporary promotion immediately prior to conversion of that temporary promotion
position into NSPS if the employee is placed back into that temporary position
after its conversion.
Sec. 9901.371(l)........... Special increases equivalent to a GS promotion increase. Adopts provisions to (1)
provide for a one-time base salary increase after conversion for eligible
employees that would permit an increase in base salary equivalent to what they
would have received in their career ladder position had it not been converted
into NSPS, and (2) provide for a base salary increase when an employee has been
selected for a position that converts into NSPS before the employee is actually
placed in the position that would equal the increase the employee would have
received if placed into that position prior to its conversion (e.g., GS-12
employee selected for a GS-13 position that would be a promotion before
conversion but a reassignment after conversion).
Sec. 9901.371(m)........... Adjustment for physicians and dentists. Authorizes special conversion adjustment
for a GS physician or dentist who was regularly receiving physicians'
comparability allowance or premium pay prior to conversion so that his/her base
salary at the time of conversion may be increased by the Component to account
for the loss of the allowance and premium pay under NSPS.
Sec. 9901.372.............. Conversion or movement out of NSPS pay system. Adds a new section that addresses
pay setting when employees convert or move out of the NSPS pay system and are
placed in another Federal pay system (e.g., the General Schedule). Additional
information on these rules is provided by paragraph below. (Existing Sec.
9901.372 in the current regulations is deleted, since it dealt with the
establishment of the initial NSPS pay ranges, which has already occurred.)
Sec. 9901.372(a)........... General. Introduces the new Sec. 9901.372, which now addresses the treatment of
an employee who is converted out of NSPS when the Secretary makes a decision to
rescind the application of one or more subparts of this part to a particular
category of employees or an organization or functional unit or who moves from a
position covered by NSPS to a position in a different pay system. Provides
definitions of ``conversion'' and ``movement'' and related terms.
Sec. 9901.372(b)........... Classification of covered position. Provides for a requirement that prior to
converting an employee and his/her position out of NSPS, the position must be
classified consistent with appropriate classification guidance and/or other
appropriate criteria applicable to the gaining system (usually, the General
Schedule). (Such a classification determination is not needed if an employee is
moving out of the NSPS by some action other than conversion.)
Sec. 9901.372(c)........... Determining pay under the new system. Establishes a requirement that the pay
setting rules of the gaining system be applied when an employee converts or
moves out of NSPS. For the purpose of applying those rules, the employee's final
pay under NSPS is based on the employee's NSPS permanent position as of the day
immediately before the date of conversion or movement out of NSPS. Also,
provides that NSPS rules do not apply to any personnel or pay action taking
effect on the date of conversion or movement.
Sec. 9901.372(d)........... Virtual GS grade and rate. Prescribes rules for establishing a virtual GS grade
and rate of pay to be used for the purpose of applying GS pay administration
rules upon conversion or movement from NSPS.
Sec. 9901.372(e)........... GS within-grade increases. States rule that NSPS service is creditable for GS
within-grade increase purposes, as required by regulations at 5 CFR part 531,
subpart D.
Sec. 9901.372(f)........... Comparison of rates of basic pay. Provides that any reallocation of an employee's
adjusted pay between basic pay and any locality payment, loc