[Federal Register Volume 85, Number 43 (Wednesday, March 4, 2020)]
[Notices]
[Pages 12771-12773]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-03057]


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DEPARTMENT OF COMMERCE

[Docket No.: 200130-0038]
RIN 0690-XC008


Commerce Alternative Personnel System

AGENCY: Office of Administration, Office of Human Resources Management, 
Department of Commerce.

ACTION: Notice of modifications to the Commerce Alternative Personnel 
System project plan.

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SUMMARY: This notice announces modifications of the provisions of the 
Commerce Alternative Personnel System, formerly the Department of 
Commerce Personnel Management Demonstration Project, published in the 
Federal Register on December 24, 1997. This notice makes permanent the 
three-year probationary period, a hallmark of the original Department 
of Commerce Demonstration Project and later the Commerce Alternative 
Personnel System.

DATES: The modified Commerce Alternative Personnel System is effective 
March 4, 2020.

FOR FURTHER INFORMATION CONTACT: Department of Commerce--Sandra 
Thompson, U.S. Department of Commerce, 1401 Constitution Avenue NW, 
Room 51020, Washington, DC 20230, (202) 482-0056 or Valerie Smith at 
(202) 482-0272.

SUPPLEMENTARY INFORMATION:

Background

    Under 5 U.S.C. 4703, the Office of Personnel Management (OPM) may 
authorize Federal agencies to conduct demonstration projects that waive 
various provisions of Title 5 of the United States Code that pertain to 
Federal employees' conditions of employment. On December 24, 1997, OPM 
announced it had approved a Department of Commerce (DoC) demonstration 
project for an alternative personnel management system and published 
the final plan in the Federal Register (62 FR 67434). The demonstration 
project was designed to simplify current classification systems for 
greater flexibility in classifying work and paying employees; establish 
a performance management and rewards system for improving individual 
and organizational performance; and improve recruiting and examining to 
attract highly qualified candidates. The purpose of the project was to 
strengthen the contribution of human resources management and test 
whether the same innovations conducted under the

[[Page 12772]]

National Institute of Standards and Technology alternative personnel 
management system would produce similarly successful results in other 
DoC environments. The project was implemented on March 29, 1998. A 
provision in the Consolidated Appropriations Act, 2008 (Pub. L. 110-
161, Division B, section 108) made the demonstration project permanent 
(extended it indefinitely) and eliminated the cap on the number of 
individuals who could be included in the project. The project was 
subsequently renamed the Commerce Alternative Personnel System (CAPS).
    CAPS provides for modifications to be made to the project plan as 
experience is gained, results are analyzed, and conclusions are reached 
on how the system is working. Since its initial implementation, DoC's 
project plan has been modified fourteen times to clarify certain 
authorities, and to extend and expand the demonstration project/
alternative personnel system: 64 FR 52810 (September 30, 1999); 68 FR 
47948 (August 12, 2003); 68 FR 54505 (September 17, 2003); 70 FR 38732 
(July 5, 2005); 71 FR 25615 (May 1, 2006); 71 FR 50950 (August 28, 
2006); 74 FR 22728 (May 14, 2009); 80 FR 25 (January 2, 2015); 81 FR 
20322 (April 7, 2016); 81 FR 40653 (June 22, 2016); 81 FR 54787 (August 
17, 2016); 82 FR 1688 (January 6, 2017); 83 FR 54707 (October 31, 
2018); and 84 FR 22807 (May 20, 2019).
    This notice announces that DoC is modifying the CAPS project plan 
to make the three-year probationary period, a feature of the original 
demonstration project, permanent for all employees in the competitive 
and excepted service in the Scientific and Engineering (ZP) Career Path 
assigned to research and development (R&D) positions, identified by the 
Functional Classification Code assigned through the classification 
process.

John K. Guenther,
Acting Director for Human Resources Management and Chief Human Capital 
Officer.

Table of Contents

I. Executive Summary
II. Basis for CAPS Project Plan Modification
III. Changes to the CAPS Project Plan: Authorities and Waiver of 
Required Laws and Regulations

I. Executive Summary

    CAPS is designed to (1) improve hiring and allow DoC to compete 
more effectively for high-quality candidates through direct hiring, 
selective use of higher entry salaries, and selective use of 
recruitment incentives; (2) motivate and retain staff through higher 
pay potential, pay-for-performance, more responsive personnel systems, 
and selective use of retention incentives; (3) strengthen the manager's 
role in personnel management through delegation of personnel 
authorities; and (4) increase the efficiency of personnel systems 
through the installation of a simpler and more flexible classification 
system based on pay banding through reduction of guidelines, steps, and 
paperwork in classification, hiring, and other personnel systems, and 
through automation.
    The current participating organizations include 1 office of the 
Deputy Secretary in the Office of the Secretary, 6 offices of the Chief 
Financial Officer/Assistant Secretary for Administration in the Office 
of the Secretary; the Bureau of Economic Analysis; 2 units of the 
National Telecommunications and Information Administration (NTIA): The 
Institute for Telecommunication Sciences and the First Responder 
Network Authority (an independent authority within NTIA); and 12 units 
of the National Oceanic and Atmospheric Administration: Office of 
Oceanic and Atmospheric Research, National Marine Fisheries Service, 
the National Environmental Satellite, Data, and Information Service, 
National Weather Service--Space Environment Center, National Ocean 
Service, Program Planning and Integration Office, Office of the Under 
Secretary, Marine and Aviation Operations, Office of the Chief 
Administrative Officer, Office of the Chief Financial Officer, the 
Office of Human Capital Services, formerly the Workforce Management 
Office, and the Office of the Chief Information Officer.

II. Basis for CAPS Project Plan Modification

A. Three-Year Probationary/Trial Period

    CAPS is designed to provide supervisors/managers at the lowest 
organizational level the authority, control, and flexibility to 
recruit, retain, develop, recognize, and motivate its workforce, while 
ensuring adequate accountability and oversight.
    Since its initial project plan was published in 1997, DoC has had a 
provision, first in its OPM approved demonstration project and later in 
its approved CAPS, requiring employees in the Scientific and 
Engineering (ZP) Career Path performing R&D work to serve a 
probationary period of three years, with the flexibility of the 
supervisor/manager to determine, at any time after one year, that the 
R&D employee has successfully completed the probationary period. The 
purpose of the three-year probationary period is to allow a manager/
supervisor to view the full cycle of a research assignment before 
making a final decision on retaining the employee. The full cycle of 
R&D work typically extends years from the assignment of a research 
project through the publication of results; thus, the one-year 
probationary period or trial period (term employees) in the competitive 
service and the two-year probationary or trial period in the excepted 
service are insufficient for management to evaluate a new employee's 
performance and conduct to determine whether his/her continued 
employment is in the best interest of DoC.
    However, DOC's ability to fully utilize this extended probationary 
period has in recent years been constrained by changes in how a key 
statutory term has been interpreted by the U.S. Court of Appeals for 
the Federal Circuit (Federal Circuit or Court), and by the subsequent 
adoption of this interpretation by OPM in its regulations. 
Specifically, the Federal Circuit, in two decisions, held that the 
definition of ``employee'' in 5 U.S.C. 7511(a)(1) included individuals 
serving in a probationary or trial period as long as those individuals 
had completed one year (in the case of individuals in the competitive 
service) or two years (in the case of non-preference individuals in the 
excepted service) of current continuous federal service in the same or 
similar position. See Van Wersch v. Department of Health and Human 
Services, 197 F.3d 1144 (Fed. Cir. 1999); McCormick v. Department of 
the Air Force, 307 F.3d 1339 (Fed. Cir. 2002). As ``employees'' have 
the right to appeal adverse actions to the Merit Systems Protection 
Board under 5 U.S.C. 7701(a), this interpretation meant those 
individuals who were performing R&D work would have the right to appeal 
adverse employment decisions after as little as one year--effectively 
negating the three-year probationary period for R&D employees provided 
for under CAPS. After the Federal Circuit's rulings, OPM revised its 
regulations, making conforming changes to 5 CFR parts 315 and 752 (73 
FR 7187 (February 7, 2008)).

B. Waivers

    Under 5 U.S.C. 4703, DoC has the authority to waive 5 U.S.C. 
7511(a)(1), as it has been interpreted by the Federal Circuit, as well 
as OPM's revised regulations which implement that interpretation. By 
this notice, we announce that we are doing so.

[[Page 12773]]

    At the time DoC's original plan for the demonstration project that 
was to become CAPS was approved and implemented, probationary employees 
were not afforded procedural and appeal rights under 5 CFR part 752; 
only employees who had successfully completed their probationary period 
were afforded procedural protections and appeal rights. As a result of 
the Federal Circuit's subsequent interpretation of 5 U.S.C. 7511, and 
OPM's concomitant revised interpretation, employees were granted 
procedural protections and appeal rights prior to the conclusion of the 
three-year probationary period established in CAPS. Thus, DoC can no 
longer fully use the three-year probationary period established in CAPS 
to determine employees' fitness for Federal service. The waivers of law 
and regulations provided for by this notice restore the basic intent of 
the three-year probationary period included in DoC's 1997 plan, which 
is to allow management sufficient time to assess an employee's work 
performance and conduct to ensure that employees who are retained 
beyond probation are capable of carrying out the full cycle of R&D 
work, thus contributing to the objectives of high-quality hires and a 
high-performing workforce.

III. Changes to the CAPS Project Plan: Authorities and Waiver of Laws 
and Regulations Required

    The subsection of the CAPS project plan titled ``Authorities and 
Waiver of Laws and Regulations Required'' (62 FR 67434, December 24, 
1997) is modified to revise or add the following waivers of law and 
regulations:
     Waive 5 U.S.C. 4303(f)(2), Actions based on Unacceptable 
performance, as follows: For research and development positions in the 
Scientific and Engineering Career Path only, waiving the language ``or 
who has not completed 1 year of current continuous employment under 
other than a temporary appointment limited to 1 year or less''.
     Waive 5 U.S.C. 4303(f)(3) as follows: For research and 
development positions in the Scientific and Engineering Career Path 
only, waiving the language ``the reduction in grade or removal of an 
employee in the excepted service who has not completed 1 year of 
current continuous employment in the same or similar positions.''
     Waive 5 U.S.C. 7501(1), Adverse actions, as follows: For 
research and development positions in the Scientific and Engineering 
Career Path only, waiving the language ``or who has completed 1 year of 
current continuous employment in the same or similar positions under 
other than a temporary appointment limited to 1 year or less''.
     Waive 5 U.S.C. 7511(a)(1)(A)(ii), 7511(a)(1)(B), 
7511(a)(1)(C)(ii), Adverse Actions as follows: Waived only for research 
and development positions in the Scientific and Engineering Career 
Path.
     Revise and Waive 5 CFR 315.802, Length of probationary 
period; crediting service as follows: Revised from ``waived only for 
positions in the Scientific and Engineering Career path'' to waived 
only for research and development positions in the Scientific and 
Engineering Career Path.
     Waive 5 CFR 315.803(b), Agency action during probationary 
period (general) as follows: Waived only for research and development 
positions in the Scientific and Engineering Career Path.
     Waive 5 CFR 315.805, Termination of probationers for 
conditions arising before appointment as follows: Waived only for 
research and development positions in the Scientific and Engineering 
Career Path.
     Waive 5 CFR 315.806, Appeal rights to the Merit Systems 
Protection Board as follows: Waived only for research and development 
positions in the Scientific and Engineering Career Path.
     Waive 5 CFR 752.401(c)(2), 752.401(c)(3), 752.401(c)(5), 
Coverage as follows: Waived only for research and development positions 
in the Scientific and Engineering Career Path.
     Waive 5 CFR 752.401(d)(11), Coverage as follows: For 
research and development positions in the Scientific and Engineering 
Career Path only, waiving the language ``unless he or she meets the 
requirements of paragraph (c)(5) of this section''.
     Waive 5 CFR 752.401(d)(13), Coverage as follows: For 
research and development positions in the Scientific and Engineering 
Career Path only, waiving the language ``unless he or she meets the 
requirements of paragraph (c)(2) of this section''.
     Department Administrative Order (DAO) 202-302, Employment 
in the Excepted Service as follows: For research and development 
positions in the Scientific and Engineering Career Path only, waiving 
the language in Section 1. PURPOSE, .02 ``changes the trial period for 
excepted service positions from one (1) year to two (2) years, except 
when regulations require a shorter period.''
    For research and development positions in the Scientific and 
Engineering Career Path only waiving the language in Section 7. TRIAL 
PERIODS, .01 ``Department policy requires satisfactory completion of a 
two-year (2) trial period for employees in the excepted service, except 
for appointments where regulation requires a shorter period.''
     DAO-202-315, Probationary and Trial Periods as follows: 
For research and development positions in the Scientific and 
Engineering Career Path only waiving the language in Section 1. 
PURPOSE, .02 ``In addition, this revision clarifies that the trial 
period for excepted service positions is two (2) years, unless a 
shorter period is required by regulation.''
    For research and development positions in the Scientific 
Engineering Career Path only waiving the language in Section 3. 
PROBATIONARY AND TRIAL PERIODS FOR INITIAL APPOINTMENTS, .02, Coverage, 
``Each employee serving under a career/career-conditional or term 
appointment in the competitive service will serve a probationary or 
trial period prescribed by 5 CFR, Parts 315, Subpart H and Subpart I, 
and 5 CFR 316.304, respectively, and by this Order. Each employee 
serving under a career/career-conditional appointment in the excepted 
service will serve a two-year (2) trial period.''
    For research and development positions in the Scientific and 
Engineering Career Path only waiving the language in Section 3.03 
Length, b. Excepted Service, ``All trial periods for employees in the 
excepted service are for two (2) years, except for appointments where 
regulation requires a shorter period.'' and ``For intermittent 
employees (i.e., those who do not have a regularly scheduled tour of 
duty), the trail period is two (2) calendar years.''

[FR Doc. 2020-03057 Filed 3-3-20; 8:45 am]
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