§ 9902. Department of Defense personnel authorities

Footnotes

1. 1 See References in Text note below.

Legislative history

Reconstructed from this section’s Code source credit and amendment notes, resolved against the local Statutes at Large. Editorial notes are evidence, not the law that made the change.

1. 2003

   National Defense Authorization Act for Fiscal Year 2004

   Pub. L. 108–136 div. A title XI § 1101(a)(1) · 117 Stat. 1392

   Enacted · 5 U.S.C. § 9902

   Added Pub. L. 108–136, div. A, title XI, § 1101(a)(1), Nov. 24, 2003, 117 Stat. 1621

   Source evidence

   Code source credit
   Added Pub. L. 108–136, div. A, title XI, § 1101(a)(1), Nov. 24, 2003, 117 Stat. 1621

   Enacted provision · exact public law section
   (1) Subpart I of part III of title 5, United States Code, is amended by adding at the end the following new chapter: “CHAPTER 99— DEPARTMENT OF DEFENSE NATIONAL SECURITY PERSONNEL SYSTEM “Sec. “9901.  Definitions. “9902.  Establishment of human resources management system. “9903.  Attracting highly qualified experts. “9904.  Special pay and benefits for certain employees outside the United States. “§ 9901. Definitions   “For purposes of this chapter— “(1) the term ‘Director’ means the Director of the Office of Personnel Management; and “(2) the term ‘Secretary’ means the Secretary of Defense. “§ 9902. Establishment of human resources management system “(a) In General.— Notwithstanding any other provision of this part, the Secretary may, in regulations prescribed jointly with the Director, establish, and from time to time adjust, a human resources management system for some or all of the organizational or functional units of the Department of Defense. The human resources management system established under authority of this section shall be referred to as the ‘National Security Personnel System’. “(b) System Requirements.— Any system established under subsection (a) shall— “(1) be flexible; “(2) be contemporary; “(3) not waive, modify, or otherwise affect— “(A) the public employment principles of merit and fitness set forth in section 2301, including the principles of hiring based on merit, fair treatment without regard to political affiliation or other nonmerit considerations, equal pay for equal work, and protection of employees against reprisal for whistleblowing; “(B) any provision of section 2302, relating to prohibited personnel practices; “(C) (i) any provision of law referred to in section 2302(b)(1), (8), and (9); or “(ii) any provision of law implementing any provision of law referred to in section 2302(b)(1), (8), and (9) by— “(I) providing for equal employment opportunity through affirmative action; or “(II) providing any right or remedy available to any employee or applicant for employment in the public service; “(D) any other provision of this part (as described in subsection (d)); or “(E) any rule or regulation prescribed under any provision of law referred to in this paragraph; “(4) ensure that employees may organize, bargain collectively as provided for in this chapter, and participate through labor organizations of their own choosing in decisions which affect them, subject to the provisions of this chapter and any exclusion from coverage or limitation on negotiability established pursuant to law; “(5) not be limited by any specific law or authority under this title, or by any rule or regulation prescribed under this title, that is waived in regulations prescribed under this chapter, subject to paragraph (3); and “(6) include a performance management system that incorporates the following elements: “(A) Adherence to merit principles set forth in section 2301. “(B) A fair, credible, and transparent employee performance appraisal system. “(C) A link between the performance management system and the agency’s strategic plan. “(D) A means for ensuring employee involvement in the design and implementation of the system. “(E) Adequate training and retraining for supervisors, managers, and employees in the implementation and operation of the performance management system. “(F) A process for ensuring ongoing performance feedback and dialogue between supervisors, managers, and employees throughout the appraisal period, and setting timetables for review. “(G) Effective safeguards to ensure that the management of the system is fair and equitable and based on employee performance. “(H) A means for ensuring that adequate agency resources are allocated for the design, implementation, and administration of the performance management system. “(I) A pay-for-performance evaluation system to better link individual pay to performance, and provide an equitable method for appraising and compensating employees. “(c) Personnel Management at Defense Laboratories.— (1) The National Security Personnel System shall not apply with respect to a laboratory under paragraph (2) before October 1, 2008, and shall apply on or after October 1, 2008, only to the extent that the Secretary determines that the flexibilities provided by the National Security Personnel System are greater than the flexibilities provided to those laboratories pursuant to section 342 of the National Defense Authorization Act for Fiscal Year 1995 (Public Law 103–337; 108 Stat. 2721) and section 1101 of the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999 (5 U.S.C. 3104 note), respectively. “(2) The laboratories to which this subsection applies are— “(A) the Aviation and Missile Research Development and Engineering Center; “(B) the Army Research Laboratory; “(C) the Medical Research and Materiel Command; “(D) the Engineer Research and Development Command; “(E) the Communications-Electronics Command; “(F) the Soldier and Biological Chemical Command; “(G) the Naval Sea Systems Command Centers; “(H) the Naval Research Laboratory; “(I) the Office of Naval Research; and “(J) the Air Force Research Laboratory. “(d) Other Nonwaivable Provisions.— The other provisions of this part referred to in subsection (b)(3)(D) are (to the extent not otherwise specified in this title)— “(1) subparts A, B, E, G, and H of this part; and “(2) chapters 41, 45, 47, 55 (except subchapter V thereof, apart from section 5545b), 57, 59, 71, 72, 73, and 79, and this chapter. “(e) Limitations Relating to Pay.— (1) Nothing in this section shall constitute authority to modify the pay of any employee who serves in an Executive Schedule position under subchapter II of chapter 53. “(2) Except as provided for in paragraph (1), the total amount in a calendar year of allowances, differentials, bonuses, awards, or other similar cash payments paid under this title to any employee who is paid under section 5376 or 5383 or under title 10 or under other comparable pay authority established for payment of Department of Defense senior executive or equivalent employees may not exceed the total annual compensation payable to the Vice President under section 104 of title 3. “(3) To the maximum extent practicable, the rates of compensation for civilian employees at the Department of Defense shall be adjusted at the same rate, and in the same proportion, as are rates of compensation for members of the uniformed services. “(4) To the maximum extent practicable, for fiscal years 2004 through 2008, the overall amount allocated for compensation of the civilian employees of an organizational or functional unit of the Department of Defense that is included in the National Security Personnel System shall not be less than the amount that would have been allocated for compensation of such employees for such fiscal year if they had not been converted to the National Security Personnel System, based on, at a minimum— “(A) the number and mix of employees in such organizational or functional unit prior to the conversion of such employees to the National Security Personnel System; and “(B) adjusted for normal step increases and rates of promotion that would have been expected, had such employees remained in their previous pay schedule. “(5) To the maximum extent practicable, the regulations implementing the National Security Personnel System shall provide a formula for calculating the overall amount to be allocated for fiscal years after fiscal year 2008 for compensation of the civilian employees of an organization or functional unit of the Department of Defense that is included in the National Security Personnel System. The formula shall ensure that in the aggregate, employees are not disadvantaged in terms of the overall amount of pay available as a result of conversion to the National Security Personnel System, while providing flexibility to accommodate changes in the function of the organization, changes in the mix of employees performing those functions, and other changed circumstances that might impact pay levels. “(f) Provisions To Ensure Collaboration With Employee Representatives.— (1) In order to ensure that the authority of this section is exercised in collaboration with, and in a manner that ensures the participation of, employee representatives in the planning, development, and implementation of the National Security Personnel System, the Secretary and the Director shall provide for the following: “(A) The Secretary and the Director shall, with respect to any proposed system— “(i) provide to the employee representatives representing any employees who might be affected a written description of the proposed system or adjustment (including the reasons why it is considered necessary); “(ii) give such representatives at least 30 calendar days (unless extraordinary circumstances require earlier action) to review and make recommendations with respect to the proposal; and “(iii) give any recommendations received from such representatives under clause (ii) full and fair consideration in deciding whether or how to proceed with the proposal. “(B) Following receipt of recommendations, if any, from such employee representatives with respect to a proposal described in subparagraph (A), the Secretary and the Director shall accept such modifications to the proposal in response to the recommendations as they determine advisable and shall, with respect to any parts of the proposal as to which they have not accepted the recommendations— “(i) Notification. notify Congress of those parts of the proposal, together with the recommendations of the employee representatives; “(ii) meet and confer for not less than 30 calendar days with the employee representatives, in order to attempt to reach agreement on whether or how to proceed with those parts of the proposal; and “(iii) at the Secretary’s option, or if requested by a majority of the employee representatives participating, use the services of the Federal Mediation and Conciliation Service during such meet and confer period to facilitate the process of attempting to reach agreement. “(C) (i) Any part of the proposal as to which the representatives do not make a recommendation, or as to which the recommendations are accepted by the Secretary and the Director, may be implemented immediately. “(ii) With respect to any parts of the proposal as to which recommendations have been made but not accepted by the Secretary and the Director, at any time after 30 calendar days have elapsed since the initiation of the congressional notification, consultation, and mediation procedures set forth in subparagraph (B), if the Secretary, in his discretion, determines that further consultation and mediation is unlikely to produce agreement, the Secretary may implement any or all of such parts (including any modifications made in response to the recommendations as the Secretary determines advisable), but only after 30 days have elapsed after notifying Congress of the decision to implement the part or parts involved (as so modified, if applicable). “(iii) Notification. The Secretary shall notify Congress promptly of the implementation of any part of the proposal and shall furnish with such notice an explanation of the proposal, any changes made to the proposal as a result of recommendations from the employee representatives, and of the reasons why implementation is appropriate under this subparagraph. “(D) If a proposal described in subparagraph (A) is implemented, the Secretary and the Director shall— “(i) develop a method for the employee representatives to participate in any further planning or development which might become necessary; and “(ii) give the employee representatives adequate access to information to make that participation productive. “(2) The Secretary may, at the Secretary’s discretion, engage in any and all collaboration activities described in this subsection at an organizational level above the level of exclusive recognition. “(3) In the case of any employees who are not within a unit with respect to which a labor organization is accorded exclusive recognition, the Secretary and the Director may develop procedures for representation by any appropriate organization which represents a substantial percentage of those employees or, if none, in such other manner as may be appropriate, consistent with the purposes of this subsection. “(4) The procedures under this subsection are the exclusive procedures for the participation of employee representatives in the planning, development, implementation, or adjustment of the National Security Personnel System. “(g) Provisions Regarding National Level Bargaining.— (1) The National Security Personnel System implemented or modified under this chapter may include employees of the Department of Defense from any bargaining unit with respect to which a labor organization has been accorded exclusive recognition under chapter 71. “(2) For any bargaining unit so included under paragraph (1), the Secretary may bargain with a labor organization at an organizational level above the level of exclusive recognition. The decision to bargain at a level above the level of exclusive recognition shall not be subject to review or to statutory third-party dispute resolution procedures outside the Department of Defense. Any such bargaining shall— “(A) be binding on all subordinate bargaining units of the labor organization at the level of recognition and their exclusive representatives, and the Department of Defense and its subcomponents, without regard to levels of recognition; “(B) supersede all other collective bargaining agreements of the labor organization, including collective bargaining agreements negotiated with an exclusive representative at the level of recognition, except as otherwise determined by the Secretary; “(C) not be subject to further negotiations with the labor organizations for any purpose, including bargaining at the level of recognition, except as provided for by the Secretary; and “(D) be subject to review by an independent third party only to the extent provided and pursuant to procedures established under paragraph (6) of subsection (m). “(3) The National Guard Bureau and the Army and Air Force National Guard are excluded from coverage under this subsection. “(4) Any bargaining completed pursuant to this subsection with a labor organization not otherwise having national consultation rights with the Department of Defense or its subcomponents shall not create any obligation on the Department of Defense or its subcomponents to confer national consultation rights on such a labor organization. “(h) Provisions Relating to Appellate Procedures.— (1) The Secretary— “(A) may establish an appeals process that provides employees of the Department of Defense organizational and functional units that are included in the National Security Personnel System fair treatment in any appeals that they bring in decisions relating to their employment; and “(B) shall in prescribing regulations for any such appeals process— “(i) ensure that employees in the National Security Personnel System are afforded the protections of due process; and “(ii) toward that end, be required to consult with the Merit Systems Protection Board before issuing any such regulations. “(2) Regulations implementing the appeals process may establish legal standards and procedures for personnel actions, including standards for applicable relief, to be taken on the basis of employee misconduct or performance that fails to meet expectations. Such standards shall be consistent with the public employment principles of merit and fitness set forth in section 2301. “(3) Legal standards and precedents applied before the effective date of this section by the Merit Systems Protection Board and the courts under chapters 43, 75, and 77 of this title shall apply to employees of organizational and functional units included in the National Security Personnel System, unless such standards and precedents are inconsistent with legal standards established under this subsection. “(4) An employee who— “(A) is removed, suspended for more than 14 days, furloughed for 30 days or less, reduced in pay, or reduced in pay band (or comparable reduction) by a final decision under the appeals process established under paragraph (1); “(B) is not serving under probationary period as defined under regulations established under paragraph (2); and “(C) would otherwise be eligible to appeal a performance-based or adverse action under chapter 43 or 75, as applicable, to the Merit Systems Protection Board, shall have the right to petition the full Merit Systems Protection Board for review of the record of that decision pursuant to regulations established under paragraph (2). The Board may dismiss any petition that, in the view of the Board, does not raise substantial questions of fact or law. No personnel action shall be stayed and no interim relief shall be granted during the pendency of the Board’s review unless specifically ordered by the Board. “(5) The Board may order such corrective action as the Board considers appropriate only if the Board determines that the decision was— “(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; “(B) obtained without procedures required by law, rule, or regulation having been followed; or “(C) unsupported by substantial evidence. “(6) An employee who is adversely affected by a final order or decision of the Board may obtain judicial review of the order or decision as provided in section 7703. The Secretary of Defense, after notifying the Director, may obtain judicial review of any final order or decision of the Board under the same terms and conditions as provided an employee. “(7) Nothing in this subsection shall be construed to authorize the waiver of any provision of law, including an appeals provision providing a right or remedy under section 2302(b) (1), (8) or (9), that is not otherwise waivable under subsection (a). “(8) The right of an employee to petition the Merit Systems Protection Board of the Department’s final decision on an action covered by paragraph (4) of this subsection, and the right of the Merit Systems Protection Board to review such action or to order corrective action pursuant to paragraph (5), is provisional for 7 years after the date of the enactment of this chapter, and shall become permanent unless Congress acts to revise such provisions. “(i) Provisions Related to Separation and Retirement Incentives.— (1) The Secretary may establish a program within the Department of Defense under which employees may be eligible for early retirement, offered separation incentive pay to separate from service voluntarily, or both. This authority may be used to reduce the number of personnel employed by the Department of Defense or to restructure the workforce to meet mission objectives without reducing the overall number of personnel. This authority is in addition to, and notwithstanding, any other authorities established by law or regulation for such programs. “(2) (A) The Secretary may not authorize the payment of voluntary separation incentive pay under paragraph (1) to more than 25,000 employees in any fiscal year, except that employees who receive voluntary separation incentive pay as a result of a closure or realignment of a military installation under the Defense Base Closure and Realignment Act of 1990 (title XXIX of Public Law 101–510; 10 U.S.C. 2687 note) shall not be included in that number. “(B) The Secretary shall prepare a report each fiscal year setting forth the number of employees who received such pay as a result of a closure or realignment of a military base as described under subparagraph (A). “(C) The Reports. Secretary shall submit the report under subparagraph (B) to the Committee on Armed Services and the Committee on Governmental Affairs of the Senate, and the Committee on Armed Services and the Committee on Government Reform of the House of Representatives. “(3) For purposes of this section, the term ‘employee’ means an employee of the Department of Defense, serving under an appointment without time limitation, except that such term does not include— “(A) a reemployed annuitant under subchapter III of chapter 83 or chapter 84, or another retirement system for employees of the Federal Government; “(B) an employee having a disability on the basis of which such employee is or would be eligible for disability retirement under any of the retirement systems referred to in subparagraph (A); or “(C) for purposes of eligibility for separation incentives under this section, an employee who is in receipt of a decision notice of involuntary separation for misconduct or unacceptable performance. “(4) An employee who is at least 50 years of age and has completed 20 years of service, or has at least 25 years of service, may, pursuant to regulations promulgated under this section, apply and be retired from the Department of Defense and receive benefits in accordance with chapter 83 or 84 if the employee has been employed continuously within the Department of Defense for more than 30 days before the date on which the determination to conduct a reduction or restructuring within 1 or more Department of Defense components is approved. “(5) (A) Separation pay shall be paid in a lump sum or in installments and shall be equal to the lesser of— “(i) an amount equal to the amount the employee would be entitled to receive under section 5595(c), if the employee were entitled to payment under such section; or “(ii) $25,000. “(B) Separation pay shall not be a basis for payment, and shall not be included in the computation, of any other type of Government benefit. Separation pay shall not be taken into account for the purpose of determining the amount of any severance pay to which an individual may be entitled under section 5595, based on any other separation. “(C) Separation pay, if paid in installments, shall cease to be paid upon the recipient’s acceptance of employment by the Federal Government, or commencement of work under a personal services contract as described in paragraph (6). “(6) (A) An employee who receives separation pay under such program may not be reemployed by the Department of Defense for a 12-month period beginning on the effective date of the employee’s separation, unless this prohibition is waived by the Secretary on a case-by-case basis. “(B) An employee who receives separation pay under this section on the basis of a separation occurring on or after the date of the enactment of the Federal Workforce Restructuring Act of 1994 (Public Law 103–236; 108 Stat. 111) and accepts employment with the Government of the United States, or who commences work through a personal services contract with the United States within 5 years after the date of the separation on which payment of the separation pay is based, shall be required to repay the entire amount of the separation pay to the Department of Defense. If the employment is with an Executive agency (as defined by section 105) other than the Department of Defense, the Director may, at the request of the head of that agency, waive the repayment if the individual involved possesses unique abilities and is the only qualified applicant available for the position. If the employment is within the Department of Defense, the Secretary may waive the repayment if the individual involved is the only qualified applicant available for the position. If the employment is with an entity in the legislative branch, the head of the entity or the appointing official may waive the repayment if the individual involved possesses unique abilities and is the only qualified applicant available for the position. If the employment is with the judicial branch, the Director of the Administrative Office of the United States Courts may waive the repayment if the individual involved possesses unique abilities and is the only qualified applicant available for the position. “(7) Under this program, early retirement and separation pay may be offered only pursuant to regulations established by the Secretary, subject to such limitations or conditions as the Secretary may require. “(j) Provisions Relating to Reemployment.— If an annuitant receiving an annuity from the Civil Service Retirement and Disability Fund becomes employed in a position within the Department of Defense, his annuity shall continue. An annuitant so reemployed shall not be considered an employee for purposes of chapter 83 or 84. “(k) Additional Provisions Relating to Personnel Management.— (1) Notwithstanding subsection (d), the Secretary of Defense, in establishing and implementing the National Security Personnel System under subsection (a), shall not be limited by any provision of this title or any rule or regulation prescribed under this title in establishing and implementing regulations relating to— “(A) the methods of establishing qualification requirements for, recruitment for, and appointments to positions; “(B) the methods of assigning, reassigning, detailing, transferring, or promoting employees; and “(C) the methods of reducing overall agency staff and grade levels, except that performance, veterans’ preference, tenure of employment, length of service, and such other factors as the Secretary considers necessary and appropriate shall be considered in decisions to realign or reorganize the Department’s workforce. “(2) In implementing this subsection, the Secretary shall comply with the provisions of section 2302(b)(11), regarding veterans’ preference requirements, as provided for in subsection (b)(3). “(l) Phase-In.— The Secretary may apply the National Security Personnel System— “(1) to an organizational or functional unit that includes up to 300,000 civilian employees of the Department of Defense, without having to make a determination described in paragraph (2); and “(2) to an organizational or functional unit that includes more than 300,000 civilian employees of the Department of Defense, if the Secretary determines in accordance with subsection (a) that the Department has in place a performance management system that meets the criteria specified in subsection (b). “(m) Labor Management Relations in the Department of Defense.— (1) Notwithstanding section 9902(d)(2), the Secretary, together with the Director, may establish and from time to time adjust a labor relations system for the Department of Defense to address the unique role that the Department’s civilian workforce plays in supporting the Department’s national security mission. “(2) The system developed or adjusted under paragraph (1) would allow for a collaborative issue-based approach to labor management relations. “(3) In order to ensure that the authority of this section is exercised in collaboration with, and in a manner that ensures the participation of, employee representatives in the development and implementation of the labor management relations system or adjustments to such system under this section, the Secretary shall provide for the following: “(A) The Secretary and the Director shall, with respect to any proposed system or adjustment— “(i) afford employee representatives and management the opportunity to have meaningful discussions concerning the development of the new system; “(ii) give such representatives at least 30 calendar days (unless extraordinary circumstances require earlier action) to review the proposal for the system and make recommendations with respect to it; and “(iii) give any recommendations received from such representatives under clause (ii) full and fair consideration. “(B) Following receipt of recommendations, if any, from such employee representatives with respect to a proposal described in subparagraph (A), the Secretary and the Director shall accept such modifications to the proposal in response to the recommendations as are determined advisable and shall, with respect to any parts of the proposal as to which they have not accepted the recommendations— “(i) meet and confer for not less than 30 calendar days with the employee representatives, in order to attempt to reach agreement on whether or how to proceed with those parts of the proposal; and “(ii) at the Secretary’s option, or if requested by a majority of the employee representatives participating, use the services of the Federal Mediation and Conciliation Service during such meet and confer period to facilitate the process of attempting to reach agreement. “(C) (i) Any part of the proposal described in subparagraph (A) as to which employee representatives do not make a recommendation, or as to which the recommendations are accepted under subparagraph (B), may be implemented immediately. “(ii) With respect to any parts of the proposal as to which recommendations have been made but not accepted, at any time after 30 calendar days have elapsed since the consultation and mediation procedures set forth in subparagraph (B), if the Secretary, in his discretion, determines that further consultation and mediation is unlikely to produce agreement, the Secretary may implement any or all of such parts (including any modifications made in response to the recommendations as the Secretary determines advisable), but only after 30 days have elapsed after notifying Congress of the decision to implement the part or parts involved (as so modified, if applicable). “(D) Deadline. The process for collaborating with employee representatives provided for under this subsection shall begin no later than 60 calendar days after the date of enactment of this subsection. “(4) The Secretary may engage in any and all collaboration activities described in this subsection at an organizational level above the level of exclusive recognition. “(5) The system developed or adjusted under this subsection may incorporate the authority to bargain at a level above the level of exclusion recognition provided for in subsection (g) of this section, but may not abrogate or modify the authority provided for in that subsection. Notwithstanding this subsection, the Secretary may, at his discretion, implement the authority in subsection (g) immediately upon enactment of this subsection. “(6) The labor relations system developed or adjusted under this subsection shall provide for independent third party review of decisions, including defining what decisions are reviewable by the third party, what third party would conduct the review, and the standard or standards for that review. “(7) Nothing in this section, including the authority provided to waive, modify, or otherwise affect provisions of law not listed in subsections (b) and (c) as nonwaivable, shall be construed to expand the scope of bargaining under chapter 71 or this subsection with respect to any provision of this title that may be waived, modified, or otherwise affected under this section. “(8) The labor relations system developed or adjusted under this subsection shall be binding on all bargaining units within the Department of Defense, all employee representatives of such units, and the Department of Defense and its subcomponents, and shall supersede all other collective bargaining agreements for bargaining units in the Department of Defense, including collective bargaining agreements negotiated with employee representatives at the level of recognition, except as otherwise determined by the Secretary. “(9) Unless it is extended or otherwise provided for in law, the authority to establish, implement and adjust the labor relations system developed under this subsection shall expire six years after the date of enactment of this subsection, at which time the provisions of chapter 71 will apply. “§ 9903. Attracting highly qualified experts “(a) In General.— The Secretary may carry out a program using the authority provided in subsection (b) in order to attract highly qualified experts in needed occupations, as determined by the Secretary. “(b) Authority.— Under the program, the Secretary may— “(1) appoint personnel from outside the civil service and uniformed services (as such terms are defined in section 2101) to positions in the Department of Defense without regard to any provision of this title governing the appointment of employees to positions in the Department of Defense; “(2) prescribe the rates of basic pay for positions to which employees are appointed under paragraph (1) at rates not in excess of the maximum rate of basic pay authorized for senior-level positions under section 5376, as increased by locality-based comparability payments under section 5304, notwithstanding any provision of this title governing the rates of pay or classification of employees in the executive branch; and “(3) pay any employee appointed under paragraph (1) payments in addition to basic pay within the limits applicable to the employee under subsection (d). “(c) Limitation on Term of Appointment.— (1) Except as provided in paragraph (2), the service of an employee under an appointment made pursuant to this section may not exceed 5 years. “(2) The Secretary may, in the case of a particular employee, extend the period to which service is limited under paragraph (1) by up to 1 additional year if the Secretary determines that such action is necessary to promote the Department of Defense’s national security missions. “(d) Limitations on Additional Payments.— (1) The total amount of the additional payments paid to an employee under this section for any 12-month period may not exceed the lesser of the following amounts: “(A) $50,000 in fiscal year 2004, which may be adjusted annually thereafter by the Secretary, with a percentage increase equal to one-half of 1 percentage point less than the percentage by which the Employment Cost Index, published quarterly by the Bureau of Labor Statistics, for the base quarter of the year before the preceding calendar year exceeds the Employment Cost Index for the base quarter of the second year before the preceding calendar year. “(B) The amount equal to 50 percent of the employee’s annual rate of basic pay. For purposes of this paragraph, the term ‘base quarter’ has the meaning given such term by section 5302(3). “(2) An employee appointed under this section is not eligible for any bonus, monetary award, or other monetary incentive for service except for payments authorized under this section. “(3) Notwithstanding any other provision of this subsection or of section 5307, no additional payments may be paid to an employee under this section in any calendar year if, or to the extent that, the employee’s total annual compensation will exceed the maximum amount of total annual compensation payable at the salary set in accordance with section 104 of title 3. “(e) Limitation on Number of Highly Qualified Experts.— The number of highly qualified experts appointed and retained by the Secretary under subsection (b)(1) shall not exceed 2,500 at any time. “(f) Savings Provisions.— In the event that the Secretary terminates this program, in the case of an employee who, on the day before the termination of the program, is serving in a position pursuant to an appointment under this section— “(1) the termination of the program does not terminate the employee’s employment in that position before the expiration of the lesser of— “(A) the period for which the employee was appointed; or “(B) the period to which the employee’s service is limited under subsection (c), including any extension made under this section before the termination of the program; and “(2) the rate of basic pay prescribed for the position under this section may not be reduced as long as the employee continues to serve in the position without a break in service. “§ 9904. Special pay and benefits for certain employees outside the United States   “The Secretary may provide to certain civilian employees of the Department of Defense assigned to activities outside the United States as determined by the Secretary to be in support of Department of Defense activities abroad hazardous to life or health or so specialized because of security requirements as to be clearly distinguishable from normal Government employment— “(1) allowances and benefits— “(A) comparable to those provided by the Secretary of State to members of the Foreign Service under chapter 9 of title I of the Foreign Service Act of 1980 (Public Law 96–465, 22 U.S.C. 4081 et seq.) or any other provision of law; or “(B) comparable to those provided by the Director of Central Intelligence to personnel of the Central Intelligence Agency; and “(2) special retirement accrual benefits and disability in the same manner provided for by the Central Intelligence Agency Retirement Act (50 U.S.C. 2001 et seq.) and in section 18 of the Central Intelligence Agency Act of 1949 (50 U.S.C. 403r).” .

2. 2008

   National Defense Authorization Act for Fiscal Year 2008

   Pub. L. 110–181 div. A title XI § 1106(a) · 122 Stat. 3

   1. Amended · 5 U.S.C. § 9902

      Pub. L. 110–181 amended section generally

   2. Substituted · 5 U.S.C. § 9902

      Pub. L. 110–181 substituting provisions relating to establishment of human resources management system for former provisions which related to, in subsec. (a), general authority of Secretary of Defense to establish and adjust a human resources management system, in subsec. (b), system requirements, in subsec. (c), personnel management at defense laboratories, in subsec. (d), nonwaivable provisions, in subsec. (e), limitations relating to pay, in subsec. (f), collaboration with employee representatives, in subsec. (g), national level bargaining, in subsec. (h), appellate procedures, in subsec. (i), separation and retirement incentives, in subsec. (j), reemployment, in subsec. (k), personnel management, in subsec. (l), phase-in of the National Security Personnel System, and, in subsec. (m), labor management relations

   Source evidence

   Code amendment note
   Pub. L. 110–181 amended section generally, substituting provisions relating to establishment of human resources management system for former provisions which related to, in subsec. (a), general authority of Secretary of Defense to establish and adjust a human resources management system, in subsec. (b), system requirements, in subsec. (c), personnel management at defense laboratories, in subsec. (d), nonwaivable provisions, in subsec. (e), limitations relating to pay, in subsec. (f), collaboration with employee representatives, in subsec. (g), national level bargaining, in subsec. (h), appellate procedures, in subsec. (i), separation and retirement incentives, in subsec. (j), reemployment, in subsec. (k), personnel management, in subsec. (l), phase-in of the National Security Personnel System, and, in subsec. (m), labor management relations.

   Enacted provision · exact public law section
   (a) In General.— Section 9902 of title 5, United States Code, is amended to read as follows: “§ 9902. Establishment of human resources management system “(a) In General.— The Secretary may, in regulations prescribed jointly with the Director, establish, and from time to time adjust, a human resources management system for some or all of the organizational or functional units of the Department of Defense. The human resources management system established under authority of this section shall be referred to as the ‘National Security Personnel System’. “(b) System Requirements.— Any system established under subsection (a) shall— “(1) be flexible; “(2) be contemporary; “(3) not waive, modify, or otherwise affect— “(A) the public employment principles of merit and fitness set forth in section 2301, including the principles of hiring based on merit, fair treatment without regard to political affiliation or other nonmerit considerations, equal pay for equal work, and protection of employees against reprisal for whistleblowing; “(B) any provision of section 2302, relating to prohibited personnel practices; “(C) (i) any provision of law referred to in section 2302(b)(1), (8), and (9); or “(ii) any provision of law implementing any provision of law referred to in section 2302(b)(1), (8), and (9) by— “(I) providing for equal employment opportunity through affirmative action; or “(II) providing any right or remedy available to any employee or applicant for employment in the public service; “(D) any other provision of this part (as described in subsection (d)); or “(E) any rule or regulation prescribed under any provision of law referred to in this paragraph; “(4) not apply to any prevailing rate employees, as defined in section 5342(a)(2); “(5) ensure that employees may 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; “(6) not be limited by any specific law or authority under this title, or by any rule or regulation prescribed under this title, that is waived in regulations prescribed under this chapter, subject to paragraph (3); and “(7) include a performance management system that incorporates the following elements: “(A) Adherence to merit principles set forth in section 2301. “(B) A fair, credible, and transparent employee performance appraisal system. “(C) A link between the performance management system and the agency’s strategic plan. “(D) A means for ensuring employee involvement in the design and implementation of the system. “(E) Adequate training and retraining for supervisors, managers, and employees in the implementation and operation of the performance management system. “(F) A process for ensuring ongoing performance feedback and dialogue between supervisors, managers, and employees throughout the appraisal period, and setting timetables for review. “(G) Effective safeguards to ensure that the management of the system is fair and equitable and based on employee performance. “(H) A means for ensuring that adequate agency resources are allocated for the design, implementation, and administration of the performance management system. “(I) A pay-for-performance evaluation system to better link individual pay to performance, and provide an equitable method for appraising and compensating employees. “(c) Personnel Management at Defense Laboratories.— “(1) Applicability. The National Security Personnel System shall not apply with respect to a laboratory under paragraph (2) before October 1, 2011, and shall apply on or after October 1, 2011, only to the extent that the Secretary determines that the flexibilities provided by the National Security Personnel System are greater than the flexibilities provided to those laboratories pursuant to section 342 of the National Defense Authorization Act for Fiscal Year 1995 (Public Law 103–337; 108 Stat. 2721) and section 1101 of the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999 (5 U.S.C. 3104 note), respectively. “(2) The laboratories to which this subsection applies are— “(A) the Aviation and Missile Research Development and Engineering Center; “(B) the Army Research Laboratory; “(C) the Medical Research and Materiel Command; “(D) the Engineer Research and Development Command; “(E) the Communications-Electronics Command; “(F) the Soldier and Biological Chemical Command; “(G) the Naval Sea Systems Command Centers; “(H) the Naval Research Laboratory; “(I) the Office of Naval Research; and “(J) the Air Force Research Laboratory. “(d) Other Nonwaivable Provisions.— The other provisions of this part referred to in subsection (b)(3)(D) are— “(1) subparts A, B, E, G, and H of this part; and “(2) chapters 41, 45, 47, 55 (except subchapter V thereof, apart from section 5545b), 57, 59, 71, 72, 73, 75, 77, and 79, and this chapter. “(e) Limitations Relating to Pay.— “(1) Nothing in this section shall constitute authority to modify the pay of any employee who serves in an Executive Schedule position under subchapter II of chapter 53. “(2) Except as provided for in paragraph (1), the total amount in a calendar year of allowances, differentials, bonuses, awards, or other similar cash payments paid under this title to any employee who is paid under section 5376 or 5383 or under title 10 or under other comparable pay authority established for payment of Department of Defense senior executive or equivalent employees may not exceed the total annual compensation payable to the Vice President under section 104 of title 3. “(3) To the maximum extent practicable, the rates of compensation for civilian employees at the Department of Defense shall be adjusted at the same rate, and in the same proportion, as are rates of compensation for members of the uniformed services. “(4) To the maximum extent practicable, for fiscal years 2004 through 2012, the overall amount allocated for compensation of the civilian employees of an organizational or functional unit of the Department of Defense that is included in the National Security Personnel System shall not be less than the amount that would have been allocated for compensation of such employees for such fiscal year if they had not been converted to the National Security Personnel System, based on, at a minimum— “(A) the number and mix of employees in such organizational or functional unit prior to the conversion of such employees to the National Security Personnel System; and “(B) adjusted for normal step increases and rates of promotion that would have been expected, had such employees remained in their previous pay schedule. “(5) To the maximum extent practicable, the regulations implementing the National Security Personnel System shall provide a formula for calculating the overall amount to be allocated for fiscal years after fiscal year 2012 for compensation of the civilian employees of an organization or functional unit of the Department of Defense that is included in the National Security Personnel System. The formula shall ensure that in the aggregate, employees are not disadvantaged in terms of the overall amount of pay available as a result of conversion to the National Security Personnel System, while providing flexibility to accommodate changes in the function of the organization, changes in the mix of employees performing those functions, and other changed circumstances that might impact pay levels. “(6) Amounts allocated for compensation of civilian employees of the Department of Defense pursuant to paragraphs (4) and (5) shall be available only for the purpose of providing such compensation. “(7) At the time of any annual adjustment to pay schedules pursuant to section 5303, the rate of basic pay for each employee of an organizational or functional unit of the Department of Defense that is included in the National Security Personnel System who receives a performance rating above unacceptable or who does not have a current rating of record for the most recently completed appraisal period shall be adjusted by no less than 60 percent of the amount of such adjustment. The balance of the amount that would have been available for an annual adjustment under section 5303 shall be allocated to pay pool funding, for the purpose of increasing rates of pay on the basis of employee performance. “(8) Each employee of an organizational or functional unit of the Department of Defense that is included in the National Security Personnel System who receives a performance rating above unacceptable or who does not have a current rating of record for the most recently completed appraisal period shall receive— “(A) locality-based comparability payments under section 5304 and section 5304a in the same manner and to the same extent as employees under the General Schedule; or “(B) the full measure of any other local market supplement applicable to the employee if locality-based comparability payments referred to in subparagraph (A) are not generally applicable to the employee. Nothing in this paragraph shall be construed to make locality-based comparability payments or other local market supplements payable to any category of employees or positions which were ineligible for such payments or supplements (as the case may be) as of the day before the date of the enactment of the National Defense Authorization Act for Fiscal Year 2004. “(9) Any rate of pay established or adjusted in accordance with the requirements of this section shall be non-negotiable, but shall be subject to procedures and appropriate arrangements of paragraphs (2) and (3) of section 7106(b), except that nothing in this paragraph shall be construed to eliminate the bargaining rights of any category of employees who were authorized to negotiate rates of pay as of the day before the date of the enactment of the National Defense Authorization Act for Fiscal Year 2004. “(f) Provisions Regarding National Level Bargaining.— “(1) The Secretary may bargain with a labor organization which has been accorded exclusive recognition under chapter 71 at an organizational level above the level of exclusive recognition. The decision to bargain above the level of exclusive recognition shall not be subject to review. The Secretary shall consult with the labor organization before determining the appropriate organizational level of bargaining. “(2) Any such bargaining shall— “(A) address issues that are— “(i) subject to bargaining under chapter 71 and this chapter; “(ii) applicable to multiple bargaining units; and “(iii) raised by either party to the bargaining; “(B) except as agreed by the parties or directed through an independent dispute resolution process agreed upon by the parties, be binding on all affected subordinate bargaining units of the labor organization at the level of recognition and their exclusive representatives, and the Department of Defense and its subcomponents, without regard to levels of recognition; “(C) to the extent agreed by the parties or directed through an independent dispute resolution process agreed upon by the parties, supersede conflicting provisions of all other collective bargaining agreements of the labor organization, including collective bargaining agreements negotiated with an exclusive representative at the level of recognition; and “(D) except as agreed by the parties or directed through an independent dispute resolution process agreed upon by the parties, not be subject to further negotiations for any purpose, including bargaining at the level of recognition. “(3) Any independent dispute resolution process agreed to by the parties for the purposes of paragraph (2) shall have the authority to address all issues on which the parties are unable to reach agreement. “(4) The National Guard Bureau and the Army and Air Force National Guard may be included in coverage under this subsection. “(5) Any bargaining completed pursuant to this subsection with a labor organization not otherwise having national consultation rights with the Department of Defense or its subcomponents shall not create any obligation on the Department of Defense or its subcomponents to confer national consultation rights on such a labor organization. “(g) Provisions Related to Separation and Retirement Incentives.— “(1) The Secretary may establish a program within the Department of Defense under which employees may be eligible for early retirement, offered separation incentive pay to separate from service voluntarily, or both. This authority may be used to reduce the number of personnel employed by the Department of Defense or to restructure the workforce to meet mission objectives without reducing the overall number of personnel. This authority is in addition to, and notwithstanding, any other authorities established by law or regulation for such programs. “(2) (A) The Secretary may not authorize the payment of voluntary separation incentive pay under paragraph (1) to more than 25,000 employees in any fiscal year, except that employees who receive voluntary separation incentive pay as a result of a closure or realignment of a military installation under the Defense Base Closure and Realignment Act of 1990 (title XXIX of Public Law 101–510; 10 U.S.C. 2687 note) shall not be included in that number. “(B) Reports. The Secretary shall prepare a report each fiscal year setting forth the number of employees who received such pay as a result of a closure or realignment of a military base as described under subparagraph (A). “(C) The Secretary shall submit the report under subparagraph (B) to the Committee on Armed Services and the Committee on Governmental Affairs of the Senate, and the Committee on Armed Services and the Committee on Government Reform of the House of Representatives. “(3) For purposes of this section, the term ‘employee’ means an employee of the Department of Defense, serving under an appointment without time limitation, except that such term does not include— “(A) a reemployed annuitant under subchapter III of chapter 83 or chapter 84, or another retirement system for employees of the Federal Government; “(B) an employee having a disability on the basis of which such employee is or would be eligible for disability retirement under any of the retirement systems referred to in subparagraph (A); or “(C) for purposes of eligibility for separation incentives under this section, an employee who is in receipt of a decision notice of involuntary separation for misconduct or unacceptable performance. “(4) An employee who is at least 50 years of age and has completed 20 years of service, or has at least 25 years of service, may, pursuant to regulations promulgated under this section, apply and be retired from the Department of Defense and receive benefits in accordance with chapter 83 or 84 if the employee has been employed continuously within the Department of Defense for more than 30 days before the date on which the determination to conduct a reduction or restructuring within 1 or more Department of Defense components is approved. “(5) (A) Separation pay shall be paid in a lump sum or in installments and shall be equal to the lesser of — “(i) an amount equal to the amount the employee would be entitled to receive under section 5595(c), if the employee were entitled to payment under such section; or “(ii) $25,000. “(B) Separation pay shall not be a basis for payment, and shall not be included in the computation, of any other type of Government benefit. Separation pay shall not be taken into account for the purpose of determining the amount of any severance pay to which an individual may be entitled under section 5595, based on any other separation. “(C) Separation pay, if paid in installments, shall cease to be paid upon the recipient’s acceptance of employment by the Federal Government, or commencement of work under a personal services contract as described in paragraph (6). “(6) (A) An employee who receives separation pay under such program may not be reemployed by the Department of Defense for a 12-month period beginning on the effective date of the employee’s separation, unless this prohibition is waived by the Secretary on a case-by-case basis. “(B) An employee who receives separation pay under this section on the basis of a separation occurring on or after the date of the enactment of the Federal Workforce Restructuring Act of 1994 (Public Law 103–226; 108 Stat. 111) and accepts employment with the Government of the United States, or who commences work through a personal services contract with the United States within 5 years after the date of the separation on which payment of the separation pay is based, shall be required to repay the entire amount of the separation pay to the Department of Defense. If the employment is with an Executive agency (as defined by section 105) other than the Department of Defense, the Director may, at the request of the head of that agency, waive the repayment if the individual involved possesses unique abilities and is the only qualified applicant available for the position. If the employment is within the Department of Defense, the Secretary may waive the repayment if the individual involved is the only qualified applicant available for the position. If the employment is with an entity in the legislative branch, the head of the entity or the appointing official may waive the repayment if the individual involved possesses unique abilities and is the only qualified applicant available for the position. If the employment is with the judicial branch, the Director of the Administrative Office of the United States Courts may waive the repayment if the individual involved possesses unique abilities and is the only qualified applicant available for the position. “(7) Under this program, early retirement and separation pay may be offered only pursuant to regulations established by the Secretary, subject to such limitations or conditions as the Secretary may require. “(h) Provisions Relating to Reemployment.— “(1) Except as provided under paragraph (2), if an annuitant receiving an annuity from the Civil Service Retirement and Disability Fund becomes employed in a position within the Department of Defense, his annuity shall continue. An annuitant so reemployed shall not be considered an employee for purposes of subchapter III of chapter 83 or chapter 84. “(2) (A) An annuitant retired under section 8336(d)(1) or 8414(b)(1)(A) receiving an annuity from the Civil Service Retirement and Disability Fund, who becomes employed in a position within the Department of Defense after the date of enactment of the National Defense Authorization Act for Fiscal Year 2004 (Public Law 108–136), may elect to be subject to section 8344 or 8468 (as the case may be). “(B) Deadline. An election for coverage under this paragraph shall be filed not later than the later of 90 days after the date the Department of Defense— “(i) prescribes regulations to carry out this subsection; or “(ii) Notification. takes reasonable actions to notify employees who may file an election. “(C) Effective date. If an employee files an election under this paragraph, coverage shall be effective beginning on the first day of the first applicable pay period beginning on or after the date of the filing of the election. “(D) Applicability. Paragraph (1) shall apply to an individual who is eligible to file an election under subparagraph (A) and does not file a timely election under subparagraph (B). “(3) Regulations. The Secretary shall prescribe regulations to carry out this subsection. “(i) Additional Provisions Relating to Personnel Management.— “(1) Subject to the requirements of chapter 71 and the limitations in subsection (b)(3), the Secretary of Defense, in establishing and implementing the National Security Personnel System under subsection (a), shall not be limited by any provision of this title or any rule or regulation prescribed under this title in establishing and implementing regulations relating to— “(A) the methods of establishing qualification requirements for, recruitment for, and appointments to positions; and “(B) the methods of assigning, reassigning, detailing, transferring, or promoting employees. “(2) In implementing this subsection, the Secretary shall comply with the provisions of section 2302(b)(11), regarding veterans’ preference requirements, as provided for in subsection (b)(3). “(j) Phase-in.— The Secretary may not, in any calendar year, add any organizational or functional unit to the National Security Personnel System which would cause the total number of employees added to such System in such year to exceed 100,000.” .

3. 2008

   Duncan Hunter National Defense Authorization Act for Fiscal Year 2009

   Pub. L. 110–417 · 122 Stat. 4356

   1. Substituted · 5 U.S.C. § 9902(i)

      Pub. L. 110–417 substituted “the requirements and limitations in paragraph (3)” for “the requirements of chapter 71 and the limitations in subsection (b)(3)” in par. (1)

   2. Inserted · 5 U.S.C. § 9902(i)

      Pub. L. 110–417 inserted “, in a manner comparable to that in which such provisions are applied under chapter 33” before period at end of par. (2)

   3. Added · 5 U.S.C. § 9902(i)

      Pub. L. 110–417 added par. (3)

   Source evidence

   Code amendment note
   Subsec. (i). Pub. L. 110–417 substituted “the requirements and limitations in paragraph (3)” for “the requirements of chapter 71 and the limitations in subsection (b)(3)” in par. (1), inserted “, in a manner comparable to that in which such provisions are applied under chapter 33” before period at end of par. (2), and added par. (3).

4. 2009

   National Defense Authorization Act for Fiscal Year 2010

   Pub. L. 111–84 § 1113(f)(1) · 123 Stat. 2190

   1. Amended · 5 U.S.C. § 9902

      Pub. L. 111–84, § 1113(f)(1), amended section catchline generally

   2. Substituted · 5 U.S.C. § 9902

      Pub. L. 111–84, § 1113(f)(1), substituting “Department of Defense personnel authorities” for “Establishment of human resources management system”

   Source evidence

   Code amendment note
   Pub. L. 111–84, § 1113(f)(1), amended section catchline generally, substituting “Department of Defense personnel authorities” for “Establishment of human resources management system”.

   Enacted provision · exact public law section
   (1) The heading of section 9902 of title 5, United States Code, is amended to read as follows: “§ 9902. Department of Defense personnel authorities” .

5. 2009

   National Defense Authorization Act for Fiscal Year 2010

   Pub. L. 111–84 § 1113(b)(1) · 123 Stat. 2190

   1. Added · 5 U.S.C. § 9902

      Pub. L. 111–84, § 1113(b)(1), (d), added subsecs. (a) to (d)

   2. Redesignated · 5 U.S.C. § 9902

      Pub. L. 111–84, § 1113(b)(1), (d), redesignated subsecs. (f) to (h) as (e) to (g), respectively

   3. Struck · 5 U.S.C. § 9902

      Pub. L. 111–84, § 1113(b)(1), (d), struck out former subsecs. (a) to (e), (i), and (j) which, respectively, authorized the Secretary of Defense to establish and adjust the National Security Personnel System (NSPS), provided for certain requirements of the NSPS, provided for certain exceptions to the NSPS with respect to certain laboratories, enumerated nonwaivable provisions referred to in former subsec. (b)(3)(D), established limitations relating to pay, preserved certain rights of and limitations on the Secretary, and prohibited the addition of an organizational or functional unit to the NSPS that would cause the number of employees added to the NSPS to exceed 100,000 in that year

   Target inherited from the preceding amendment note.

   Source evidence

   Code amendment note
   Pub. L. 111–84, § 1113(b)(1), (d), added subsecs. (a) to (d), redesignated subsecs. (f) to (h) as (e) to (g), respectively, and struck out former subsecs. (a) to (e), (i), and (j) which, respectively, authorized the Secretary of Defense to establish and adjust the National Security Personnel System (NSPS), provided for certain requirements of the NSPS, provided for certain exceptions to the NSPS with respect to certain laboratories, enumerated nonwaivable provisions referred to in former subsec. (b)(3)(D), established limitations relating to pay, preserved certain rights of and limitations on the Secretary, and prohibited the addition of an organizational or functional unit to the NSPS that would cause the number of employees added to the NSPS to exceed 100,000 in that year.

   Enacted provision · exact public law section
   (1) In general.— Section 9902 of title 5, United States Code, is amended— (A) by striking subsections (a), (b), (c), (d), (e), (i) and (j); and (B) by redesignating subsections (f) through (h) as subsections (e) through (g), respectively.

6. 2009

   National Defense Authorization Act for Fiscal Year 2010

   Pub. L. 111–84 § 1121 · 123 Stat. 2190

   1. Amended · 5 U.S.C. § 9902(g)(3); 5 U.S.C. § 9902(g)(4)

      Pub. L. 111–84, § 1121, as amended by Pub. L. 111–383, § 1101(c)

   2. Added · 5 U.S.C. § 9902(g)(3); 5 U.S.C. § 9902(g)(4)

      Pub. L. 111–84, § 1121, as added par. (3)

   3. Redesignated · 5 U.S.C. § 9902(g)(3); 5 U.S.C. § 9902(g)(4)

      Pub. L. 111–84, § 1121, as redesignated former par. (3) as (4), and, in par. (4)

   4. Inserted · 5 U.S.C. § 9902(g)(3); 5 U.S.C. § 9902(g)(4)

      Pub. L. 111–84, § 1121, as inserted “, excluding paragraph (3)” before period at end

   Source evidence

   Code amendment note
   Subsec. (g)(3), (4). Pub. L. 111–84, § 1121, as amended by Pub. L. 111–383, § 1101(c), added par. (3), redesignated former par. (3) as (4), and, in par. (4), inserted “, excluding paragraph (3)” before period at end.

   Enacted provision · exact public law section
   SEC. 1121. AUTHORITY TO EXPAND SCOPE OF PROVISIONS RELATING TO UNREDUCED COMPENSATION FOR CERTAIN REEMPLOYED ANNUITANTS. (a) In General.— Section 9902(h) of title 5, United States Code, is amended— (1) by redesignating paragraph (3) as paragraph (4); and (2) by inserting after paragraph (2) the following: “(3) President. Regulations. Benefits similar to those provided by paragraphs (1) and (2) may be extended, in accordance with regulations prescribed by the President, so as to be made available with respect to reemployed annuitants within the Department of Defense who are subject to such other retirement systems for Government employees (whose annuities are payable under authorities other than subchapter III of chapter 83 or chapter 84 of title 5) as may be provided for under such regulations.” . (b) Conforming Amendment.— Paragraph (4) of section 9902(h) of such title 5 (as so designated by subsection (a)(1)) is amended by striking the period and inserting “, excluding paragraph (3).”.

7. 2011

   Ike Skelton National Defense Authorization Act for Fiscal Year 2011

   Pub. L. 111–383 § 1075(a)(2) · 124 Stat. 4137

   Substituted · 5 U.S.C. § 9902(a)(2)

   Pub. L. 111–383, § 1075(a)(2), substituted “chapter” for “chapters” in two places

   Source evidence

   Code amendment note
   Subsec. (a)(2). Pub. L. 111–383, § 1075(a)(2), substituted “chapter” for “chapters” in two places.

   Enacted provision · exact public law section
   (2) Section 9902(a)(2), as added by section 1113(d) of the National Defense Authorization Act for Fiscal Year 2010 (Public Law 111–84; 123 Stat. 2499), is amended by striking “chapters” both places it appears and inserting “chapter”.

   Effective date note
   Pub. L. 111–383, div. A, title XI, § 1101(d), Jan. 7, 2011, 124 Stat. 4382, provided that:

8. 2011

   Ike Skelton National Defense Authorization Act for Fiscal Year 2011

   Pub. L. 111–383 § 1101(c) · 124 Stat. 4137

   Amended · 5 U.S.C. § 9902(g)(3); 5 U.S.C. § 9902(g)(4)

   Pub. L. 111–383, § 1101(c), amended directory language of Pub. L. 111–84, § 1121. See 2009 Amendment note below

   Source evidence

   Code amendment note
   Subsec. (g)(3), (4). Pub. L. 111–383, § 1101(c), amended directory language of Pub. L. 111–84, § 1121. See 2009 Amendment note below.

   Enacted provision · exact public law section
   (c) Correction to Section Reference.— Section 1121 of the National Defense Authorization Act for Fiscal Year 2010 (123 Stat. 2505) is 5 USC 9902. amended— (1) in subsection (a), by striking “Section 9902(h) of title 5, United States Code” and inserting “Section 9902(g) of title 5, United States Code, as redesignated by section 1113(b)(1)(B)”; and (2) in subsection (b), by striking “section 9902(h) of such title 5” and inserting “such section”.

   Effective date note
   Pub. L. 111–383, div. A, title XI, § 1101(d), Jan. 7, 2011, 124 Stat. 4382, provided that:

9. 2011

   National Defense Authorization Act for Fiscal Year 2012

   Pub. L. 112–81 § 1101(a) · 125 Stat. 1298

   1. Added · 5 U.S.C. § 9902(a)(1)(D); 5 U.S.C. § 9902(a)(1)(E)

      Pub. L. 112–81, § 1101(a), added subpar. (D)

   2. Redesignated · 5 U.S.C. § 9902(a)(1)(D); 5 U.S.C. § 9902(a)(1)(E)

      Pub. L. 112–81, § 1101(a), redesignated former subpar. (D) as (E)

   Source evidence

   Code amendment note
   Subsec. (a)(1)(D), (E). Pub. L. 112–81, § 1101(a), added subpar. (D) and redesignated former subpar. (D) as (E).

   Enacted provision · exact public law section
   (a) Career Paths.— Section 9902(a)(1) of title 5, United States Code, is amended— (1) by redesignating subparagraph (D) as subparagraph (E); and (2) by inserting after subparagraph (C) the following: “(D) Development of attractive career paths.” .

10. 2011

    National Defense Authorization Act for Fiscal Year 2012

    Pub. L. 112–81 § 1101(b) · 125 Stat. 1298

    Added · 5 U.S.C. § 9902(b)(5); 5 U.S.C. § 9902(b)(6)

    Pub. L. 112–81, § 1101(b), added pars. (5) and (6)

    Source evidence

    Code amendment note
    Subsec. (b)(5), (6). Pub. L. 112–81, § 1101(b), added pars. (5) and (6).

    Enacted provision · exact public law section
    (b) Appointment Flexibilities.— Section 9902(b) of title 5, United States Code, is amended by adding at the end the following: “(5) The Secretary shall develop a training program for Department of Defense human resource professionals to implement the requirements of this subsection. “(6) The Secretary shall develop indicators of effectiveness to determine whether appointment flexibilities under this subsection have achieved the objectives set forth in paragraph (1).” .

11. 2011

    National Defense Authorization Act for Fiscal Year 2012

    Pub. L. 112–81 § 1101(c) · 125 Stat. 1298

    1. Added · 5 U.S.C. § 9902(c)(6)(9)

       Pub. L. 112–81, § 1101(c), added pars. (6) and (7)

    2. Redesignated · 5 U.S.C. § 9902(c)(6)(9)

       Pub. L. 112–81, § 1101(c), redesignated former pars. (6) and (7) as (8) and (9), respectively

    Source evidence

    Code amendment note
    Subsec. (c)(6) to (9). Pub. L. 112–81, § 1101(c), added pars. (6) and (7) and redesignated former pars. (6) and (7) as (8) and (9), respectively.

    Enacted provision · exact public law section
    (c) Additional Requirements.— Section 9902(c) of title 5, United States Code, is amended— (1) by redesignating paragraphs (6) and (7) as paragraphs (8) and (9), respectively; and (2) by inserting after paragraph (5) the following: “(6) provide mentors to advise individuals on their career paths and opportunities to advance and excel within their fields; “(7) develop appropriate procedures for warnings during performance evaluations for employees who fail to meet performance standards;” .

12. 2011

    National Defense Authorization Act for Fiscal Year 2012

    Pub. L. 112–81 § 1102(a) · 125 Stat. 1298

    Added · 5 U.S.C. § 9902(h)

    Pub. L. 112–81, § 1102(a), added subsec. (h)

    Source evidence

    Code amendment note
    Subsec. (h). Pub. L. 112–81, § 1102(a), added subsec. (h).

    Enacted provision · exact public law section
    (a) In General.— Section 9902 of title 5, United States Code, is amended by adding at the end the following: “(h) Reports.— “(1) In general.— Not later than 1 year after the implementation of any performance management and workforce incentive system under subsection (a) or any procedures relating to personnel appointment flexibilities under subsection (b) (whichever is earlier), and whenever any significant action is taken under any of the preceding provisions of this section (but at least biennially) thereafter, the Secretary shall— “(A) conduct appropriately designed and statistically valid internal assessments or employee surveys to assess employee perceptions of any program, system, procedures, or other aspect of personnel management, as established or modified under authority of this section; and “(B) submit to the appropriate committees of Congress and the Comptroller General, a report describing the results of the assessments or surveys conducted under subparagraph (A) (including the methodology used), together with any other information which the Secretary considers appropriate. “(2) Review.— After receiving any report under paragraph (1), the Comptroller General— “(A) shall review the assessments or surveys described in such report to determine if they were appropriately designed and statistically valid; “(B) shall conduct a review of the extent to which the program, system, procedures, or other aspect of program management concerned (as described in paragraph (1)(A)) is fair, credible, transparent, and otherwise in conformance with the requirements of this section; and “(C) within 6 months after receiving such report, shall submit to the appropriate committees of Congress— “(i) an independent evaluation of the results of the assessments or surveys reviewed under subparagraph (A), and “(ii) the findings of the Comptroller General based on the review under subparagraph (B), together with any recommendations the Comptroller General considers appropriate. “(3) Definition.— For purposes of this subsection, the term ‘appropriate committees of Congress’ means— “(A) the Committees on Armed Services of the Senate and the House of Representatives; “(B) the Committee on Homeland Security and Governmental Affairs of the Senate; and “(C) the Committee on Oversight and Government Reform of the House of Representatives.” .

13. 2023

    National Defense Authorization Act for Fiscal Year 2024

    Pub. L. 118–31 § 1120(1) · 137 Stat. 136

    Struck · 5 U.S.C. § 9902(h)(1)(B)

    Pub. L. 118–31, § 1120(1), struck out “and the Comptroller General,” after “committees of Congress”

    Source evidence

    Code amendment note
    Subsec. (h)(1)(B). Pub. L. 118–31, § 1120(1), struck out “and the Comptroller General,” after “committees of Congress”.

    Enacted provision · exact public law section
    (1) in paragraph (1)(B), by striking “and the Comptroller General,”;

14. 2023

    National Defense Authorization Act for Fiscal Year 2024

    Pub. L. 118–31 § 1120(2) · 137 Stat. 136

    1. Redesignated · 5 U.S.C. § 9902(h)(2); 5 U.S.C. § 9902(h)(3)

       Pub. L. 118–31, § 1120(2), (3), redesignated par. (3) as (2)

    2. Struck · 5 U.S.C. § 9902(h)(2); 5 U.S.C. § 9902(h)(3)

       Pub. L. 118–31, § 1120(2), (3), struck out former par. (2) which provided for review by the Comptroller General of reports under paragraph (1)

    Source evidence

    Code amendment note
    Subsec. (h)(2), (3). Pub. L. 118–31, § 1120(2), (3), redesignated par. (3) as (2) and struck out former par. (2) which provided for review by the Comptroller General of reports under paragraph (1).

    Enacted provision · exact public law section
    (2) by striking paragraph (2); and

23 of 26 references resolved to an enrolled provision · 3 partial