[Federal Register Volume 86, Number 142 (Wednesday, July 28, 2021)]
[Notices]
[Pages 40500-40509]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-16082]


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DEPARTMENT OF DEFENSE

Office of the Secretary


Department of Defense Science and Technology Reinvention 
Laboratory (STRL) Personnel Demonstration (Demo) Project Program

AGENCY: Office of the Under Secretary of Defense for Research and 
Engineering (OUSD(R&E)), Department of Defense (DoD).

ACTION: Notice of amendment; STRL Personnel Demonstration Project 
reduction-in-force (RIF) procedures.

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SUMMARY: This notice amends STRL Personnel Demonstration Project 
reduction-in-force (RIF) procedures. STRL RIF procedures will ensure 
employees involuntarily separated through a RIF are separated primarily 
based on performance, as determined under any applicable performance-
management system.

DATES: This proposal may not be implemented until a 30-day comment 
period is provided, comments addressed, and a final Federal Register 
notice (FRN) published. To be considered, written comments must be 
submitted on or before August 27, 2021.

ADDRESSES: You may submit comments, identified by docket number and 
title, by any of the following methods:
    Federal eRulemaking Portal: http://www.regulations.gov. Follow the 
instructions for submitting comments.
    Mail: DoD cannot receive written comments at this time due to the 
COVID-19 pandemic. Comments should be sent electronically to the docket 
listed above.

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    Instructions: All submissions received must include the agency 
name, docket number, and title for this Federal Register document. The 
general policy for comments and other submissions from members of the 
public is to make these submissions available for public viewing on the 
internet at http://www.regulations.gov as they are received, without 
change, including any personal identifiers or contact information.

FOR FURTHER INFORMATION CONTACT: 
    Department of the Air Force:
     Air Force Research Laboratory: Ms. Rosalyn Jones-Byrd, 
937-656-9747, [email protected].
     Joint Warfare Analysis Center: Ms. Amy Balmaz, 540-653-
8598, mail.mil">Amy.T.Balmaz.civ@mail.mil.

    Department of the Army:
     Army Futures Command: Ms. Johnna Thompson, 830-469-2057, 
mail.mil">johnna.i.thompson.civ@mail.mil.
     Army Research Institute for the Behavioral and Social 
Sciences: Dr. Scott Shadrick, 254-288-3800, 
mail.mil">Scott.B.Shadrick.civ@mail.mil.
     Combat Capabilities Development Command Armaments Center: 
Mr. Mike Nicotra, 973-724-7764, mail.mil">Michael.J.Nicotra.civ@mail.mil.
     Combat Capabilities Development Command Army Research 
Laboratory: Mr. Christopher Tahaney, 410-278-9069, 
Christopher.S.Tahaney.civ@mail.mil.
     Combat Capabilities Development Command Aviation and 
Missile Center: Ms. Nancy Salmon, 256-876-9647, 
mail.mil">Nancy.C.Salmon2.civ@mail.mil.
     Combat Capabilities Development Command Chemical 
Biological Center: Ms. Patricia Milwicz, 410-417-2343, 
mail.mil">Patricia.L.Milwicz.civ@mail.mil.
     Combat Capabilities Development Command Command, Control, 
Communications, Computers, Cyber, Intelligence, Surveillance, and 
Reconnaissance Center: Ms. Angela Clybourn, 443-395-2110, 
mail.mil">Angela.M.Clyborn.civ@mail.mil.
     Combat Capabilities Development Command Ground Vehicle 
Systems Center: Ms. Jennifer Davis, 586-306-4166, 
mail.mil">Jennifer.L.Davis1.civ@mail.mil.
     Combat Capabilities Development Command Soldier Center: 
Ms. Joelle Montecalvo, 508-206-3421, mail.mil">Joelle.K.Montecalvo.civ@mail.mil.
     Engineer Research and Development Center: Ms. Patricia 
Sullivan, 601-634-3065, [email protected].
     Medical Research and Development Command: Ms. Linda Krout, 
301-619-7276, mail.mil">Linda.J.Krout.civ@mail.mil.
     Technical Center, Space and Missile Defense Command: Dr. 
Chad Marshall, 256-955-5697, mail.mil">Chad.J.Marshall.civ@mail.mil.

    Department of the Navy:
     Naval Air Warfare Center, Weapons Division and Aircraft 
Division: Mr. Richard Cracraft, 760-939-8115, 
[email protected].
     Naval Facilities Engineering Command Engineering and 
Expeditionary Warfare Center: Ms. Lori Leigh, 805-901-5917, 
[email protected].
     Naval Information Warfare Centers:
    [cir] Naval Information Warfare Center Atlantic: Mr. Michael 
Gagnon, 843-218-3871, [email protected].
    [cir] Naval Information Warfare Center Pacific: Ms. Angela Hanson, 
619-553-0833, [email protected].
     Naval Medical Research Center: Dr. Richard Arnold, 937-
938-3877, [email protected].
     Naval Research Laboratory: Ms. Ginger Kisamore, 202-767-
3792, [email protected].
     Naval Sea Systems Command Warfare Centers: Ms. Diane 
Brown, 215-897-1619, [email protected].
     Office of Naval Research: Ms. Margaret J. Mitchell, 703-
588-2364, [email protected].

    DoD:
     Dr. Jagadeesh Pamulapati, Director, Laboratories and 
Personnel Office, 571-372-6372, mail.mil">Jagadeesh.Pamulapati.civ@mail.mil.

SUPPLEMENTARY INFORMATION:

1. Background

    Section 342(b) of Public Law (Pub. L.) 103-337, as amended by 
Section 1109 of the National Defense Authorization Act (NDAA) for FY 
2000, Public Law 106-65, Section 1114 of the NDAA for FY 2001, Public 
Law 106-398, and Section 211 of the NDAA for FY 2017, Public Law 114-
328 (10 U.S.C. 2358 note), authorizes the Secretary of Defense 
(SECDEF), through the USD(R&E), to conduct personnel demonstration 
projects at DoD laboratories designated as STRLs. An STRL implementing 
these flexibilities must have an approved personnel demonstration 
project plan published in a FRN and must fulfill any collective 
bargaining obligations. Procedures described herein supersede and 
cancel the RIF procedures described in previously published STRL FRNs 
(Appendix B) and establish performance, also referred to as 
``contribution,'' as the primary basis for determining which employees 
will be separated from employment when implementing a RIF. STRL 
internal operating procedures (IOPs) will describe the use of 
discretionary flexibilities when conducting a RIF.

    The 21 current STRLS are:
 Air Force Research Laboratory
 Joint Warfare Analysis Center
 Army Futures Command
 Army Research Institute for the Behavioral and Social Sciences
 Combat Capabilities Development Command Army Research 
Laboratory
 Combat Capabilities Development Command Armaments Center
 Combat Capabilities Development Command Aviation and Missile 
Center
 Combat Capabilities Development Command Chemical Biological 
Center
 Combat Capabilities Development Command Command, Control, 
Communications, Computers, Cyber, Intelligence, Surveillance, and 
Reconnaissance Center
 Combat Capabilities Development Command Ground Vehicle Systems 
Center
 Combat Capabilities Development Command Soldier Center
 Engineer Research and Development Center
 Medical Research and Development Command
 Technical Center, U.S. Army Space and Missile Defense Command
 Naval Air Warfare Center
 Naval Facilities Engineering Command Engineering and 
Expeditionary Warfare Center
 Naval Information Warfare Centers, Atlantic and Pacific
 Naval Medical Research Center
 Naval Research Laboratory
 Naval Sea Systems Command Warfare Centers
 Office of Naval Research

2. Overview

I. Introduction

A. Purpose

    Section 1597 of Title 10, United States Code (U.S.C.), requires 
procedures to be established to ensure that, when implementing a RIF, 
all DoD employees in the competitive or excepted services are separated 
from employment ``primarily on the basis of performance, as determined 
under any applicable performance management system.'' This notice 
implements RIF procedures for the STRLs and is an overarching FRN 
applicable to all STRLs.

B. Required Waivers to Law and Regulations

    Waivers and adaptations of certain Title 5, U.S.C., and Title 5, 
Code of Federal Regulations (CFR), provisions are required only to the 
extent that these statutory and regulatory provisions limit or are 
inconsistent with the actions authorized under these demonstration

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projects. Appendix A lists waivers needed to enact authorities 
described in this FRN. Nothing in this plan is intended to preclude the 
STRLs from adopting or incorporating any law or regulation enacted, 
adopted, or amended after the effective date of this FRN.

C. Participating Organizations and Employees

    All DoD laboratories designated as STRLs under Section 1105 of the 
NDAA for FY 2010, Public Law 111-84, as amended by Section 1103 of the 
NDAA for FY 2015, Public Law 113-291, and Section 1104 of the NDAA for 
FY 2018, Public Law 115-91, including any newly designated STRLs 
authorized by the SECDEF or subsequent legislation, with approved 
personnel demonstration project plans published in FRNs must use the 
provisions described in this FRN.

II. Personnel System Changes

A. Authority

    For any RIF of civilian employees in the competitive and excepted 
services in DoD, the determination as to which employees will be 
separated from employment will be primarily based on performance, also 
referred to as ``contribution.''
    The STRLs will consider every reasonably available option to 
mitigate the impact of a proposed RIF, including but not limited to job 
changes or retraining, the use of voluntary early retirement authority 
or voluntary separation incentive payments, hiring freezes, termination 
of temporary employees, termination of employees in tenure group 0, 
reduction in work hours, curtailment of discretionary spending, and 
other pre-RIF placement activities for employees eligible for placement 
assistance and referral programs. Use of any such options shall be 
consistent with applicable policies and procedures.

B. Definitions

    Career path--A grouping of occupations with similar characteristics 
composed of pay bands designed to facilitate career progression. May 
also be referred to as career track, occupational family, or pay plan.
    Displace/Displacement--The assignment of an employee to a 
continuing position that is held by another employee with a lower 
retention standing (i.e., ``bumping'' another employee). Displacement 
may be at the same band or the next lower band below the employee's 
existing band as documented in STRL IOPs. A preference-eligible 
employee with a compensable service-connected disability of 30 percent 
or more (veteran preference category AD) may displace to positions two 
bands (or equivalent to five grades) below his/her current band. A 
released employee may have displacement rights to a position without 
regard to whether the employee previously held the position of the 
employee with lower retention standing.
    Flexible and renewable term technical appointment--An appointment 
that affords eligibility for employee programs and benefits comparable 
to those provided to similar employees with permanent appointments, to 
include opportunities for professional development and eligibility for 
award programs, as described in Section 1109 of the NDAA for FY 2016, 
as amended by Section 1112 of the NDAA for FY 2019 and in 82 FR 43339, 
as amended. Appointments may be made in six-year increments and 
extended without limit in up to six-year increments.
    Fully qualified--Employee meets the Office of Personnel Management 
qualification standards, or standard-level descriptors as described in 
STRL IOPs, and has the capacity, adaptability, and special skills 
needed to satisfactorily perform the duties of the position without 
undue interruption, e.g., within 90 days. Determination as to whether 
an impacted employee is fully qualified for RIF placement will be made 
by an STRL subject matter expert.
    Modified term appointment--An appointment used to fill a position 
for a period of more than one year but not more than five years when 
the need for an employee's services is not permanent. The modified term 
appointment differs from the term employment as described in 5 CFR part 
316 in that it may be made for up to five years, compared to four years 
for the term appointment, and may be extended for an additional year. 
An employee hired under this appointment authority may be eligible for 
conversion to a career or career-conditional appointment. It may also 
be referred to as a contingent term appointment.
    Non-rated employee--Employee with no rating of record, who is not 
eligible for a modal or presumptive rating. A non-rated (NR) 
designation will be used when an employee has not fulfilled the time 
period, as required by the STRL performance-management system, to 
receive a rating and has no assessed rating from any DoD-recognized 
performance-management system within the four-year period preceding the 
``cutoff date'' established for the RIF.
    Performance--For the purposes of a RIF in the STRLs, performance is 
determined by each STRL performance-management system, including 
contribution-based or performance-based systems, as recorded in the 
rating of record.
    Period of performance--STRL performance-management plans may 
specify a minimum number of months to receive a performance assessment. 
Such periods will be at least 90 days and generally allow all employees 
to receive at least one performance assessment prior to implementation 
of a RIF.
    Retreat--The assignment of an employee released from their 
competitive level to a position held by another employee lower in 
retention standing if the position is the same position or an 
essentially identical position formerly held by the released employee. 
This assignment may be to an essentially identical position in the 
released employee's current band or to the next lower band, regardless 
of career path as documented in STRL IOPs.
    Unacceptable rating--Documented ratings of record of unacceptable, 
unsuccessful, failure, or unsatisfactory are used synonymously and 
reflect summary level 1 as described in 5 CFR 430.208.

C. Provisions

    (1) Identification of Positions Being Abolished. Positions may be 
identified to be abolished based on budget, research area, project 
funding, lack of work, reorganization, or other elements identified by 
the STRL.
    (2) Scope of Competition. STRLs will determine the retention 
standing of each employee competing in the RIF based on any factors 
outlined in this FRN, as long as performance, as documented in the 
rating of record, is the primary consideration.
    a. Competitive Areas. The STRL may determine the competitive area 
by career path (pay plan), occupational group, line of business, 
product line, organizational unit, funding line, occupational series, 
functional area, competency area, technology directorate, or 
geographical location, or a combination of these elements, and must 
include all demonstration project employees within the defined 
competitive area. The competitive area must be defined at least 90 days 
prior to the effective date of the RIF and descriptions of all 
competitive areas must be made readily available for review.
    b. Competitive Levels. Competitive levels may or may not be used, 
as documented in STRL IOPs. If competitive levels are used, they are 
assigned at the time the position

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description is classified and may be based on demonstration project 
criteria, such as specialty areas or functional codes, so long as these 
criteria serve to define those positions that are similar enough in 
duties and qualification requirements such that an incumbent of one 
position may be reassigned to another in the competitive level without 
causing an undue interruption in work. When competitive levels are used 
and established, employees will be released as described in II.C.(7)b 
and II.C.(7)c.2. If competitive levels are not used, employees will be 
released as described in II.C.(7)c.1.
    (3) Retention Standing. Competitive-service employees and excepted-
service employees are placed on separate retention registers, with 
performance as the first factor as documented in ratings of record. 
Sample retention registers are in Appendix C.
    (4) Periods of Assessed Performance. Because the primary 
consideration is performance, STRL employees with no performance 
assessment under a DoD-recognized performance system (annotated as 
``NR'') may not be placed above those with an assessed rating of less 
than fully successful/acceptable. STRLs may, but are not required to, 
group employees based on periods of assessed performance (e.g., those 
with a period of assessed performance of at least 90 days, those with a 
period of assessed performance of a least 180 days, etc.), as 
documented in STRL IOPs.
    (5) Retention Factors. Competing employees will first be listed on 
a retention register based on rating of record (as documented in the 
personnel data system). If meaningful distinctions do not exist in the 
rating of record, each STRL may, as secondary criteria, differentiate 
based on average score or other performance-related factor. Each STRL 
may further differentiate based on any of the following retention 
factors: Tenure group; average score or other performance-related 
factor as determined by the STRL (where not previously utilized); 
veterans' preference; DoD service computation date-RIF (DoD SCD-RIF); 
SCD-RIF adjusted by additional service credit for performance; or 
period of performance.
    a. Rating of Record. Rating of record is documented by each STRL in 
accordance with its designated performance or contribution management 
cycle. Additionally, STRL procedures may provide that a single rating 
of record or multiple ratings of record will be used and averaged, as 
described in its IOPs. When multiple ratings of record are used, they 
will be drawn from the ratings within the four year period preceding 
the ``cutoff date'' established for the RIF. However, when the most 
recent rating of record is ``unacceptable,'' only that rating of record 
will be considered for purposes of a RIF. STRL procedures will provide 
a method for converting an employee's rating pattern from another 
system when it does not align with the STRL performance-management 
system, as documented in STRL IOPs.
    1. Presumptive Ratings. A presumptive rating will be used as the 
current rating of record for purposes of a RIF when an employee did not 
receive a performance appraisal due to an absence resulting from: 
Uniformed military service; performance of duties under the 
expeditionary civilian deployment program; extended leave or 
sabbatical; a work-related injury approved for compensation pursuant to 
an Office of Workers' Compensation Program; or other similar absence. 
The presumptive rating of record will be the employee's last 
performance appraisal of record prior to the period of absence or as 
specified in STRL IOPs.
    2. Modal Ratings. A modal rating will be used as the rating of 
record for those employees who do not have any previous performance 
appraisals under any DoD-recognized performance-management system 
within the four-year period preceding the cutoff date established for 
the RIF and have an absence resulting from: Uniformed military service; 
performance of duties under the expeditionary civilian deployment 
program; extended leave or sabbatical; a work-related injury approved 
for compensation pursuant to an Office of Workers' Compensation 
Program; or other similar absence. The modal rating is the rating of 
record most frequently used among the actual ratings of record given to 
employees within the same competitive area for the appropriate rating 
cycle or cycles.
    3. Non-Rated. An NR designation will be used when an employee has 
not met the time period, as specified in the STRL performance-
management plan, to receive a rating and has no assessed rating from 
any DoD-recognized performance-management system within the four-year 
period preceding the cutoff date established for the RIF.
    b. Average Score or Other Performance-Related Factor as Determined 
by the STRL. STRLs may assign numeric values to other aspects of their 
performance-management systems that further differentiate levels of 
performance or contribution. For example, if an STRL utilizes a 
contribution-based system, the delta overall contribution score or 
assessment category score may be used; in a performance-based system, 
the assigned decimal score may be used, as documented in STRL IOPs. 
STRLs using Pass/Fail as the rating of record must use average score or 
other performance-related factor as the second retention factor.
    c. Tenure Group.
    1. Tenure groups are defined in 5 CFR 351.501(b) for competitive 
service and 5 CFR 351.502(b) for excepted service, or in an STRL's FRN. 
In addition, STRLs may consider tenure group 1 and 2 employees as 
tenure group 1 for RIF purposes and employees on modified term 
appointments as tenure group 0 or tenure group 3, as documented in STRL 
IOPs.
    2. Employees on modified term or flexible-length and renewable term 
appointments who were previously selected through competitive 
procedures, and who otherwise meet conditions required for such 
conversion, may be converted to permanent appointments (tenure group 1 
or tenure group 2, as appropriate), provided such conversions are 
effective not less than 90 days prior to the effective date of the RIF.
    3. Employees on flexible-length and renewable term appointments who 
have completed three years of service may be treated as permanent 
employees (tenure group 1) and those with less than three years may be 
treated as tenure group 2, as documented in STRL IOPs.
    4. Employees treated as tenure group 3 are ranked below any tenure 
group 1 or 2 employees, notwithstanding any other retention factor.
    d. Veterans' Preference. Competing employees are placed in a 
veterans' preference category as described in 5 CFR 351.501(c).
    e. DoD SCD-RIF. The SCD-RIF includes all creditable service 
authorized by 5 CFR 351.503(a) and (b). The STRLs may further 
differentiate an employee's retention standing by utilizing the 
retention service credit for performance as described in 5 CFR 351.504. 
If used, this is referred to as DoD SCD-RIF adjusted.
    (6) Creation of the Retention Register. STRLs will determine and 
document the order of retention in a manner that ensures retention 
decisions are based primarily on performance, as documented in the 
rating of record. Other factors which may receive secondary 
consideration are tenure group, veterans' preference, SCD RIF, SCD RIF 
adjusted, and period of performance. Factors will be weighted in a 
manner that generally ensures that high-performing employees are not 
displaced.
    (7) Order of Release.

[[Page 40504]]

    a. Employees to be Released First.
    1. STRLs can release Tenure 0 employees prior to RIF competition 
based on mission needs.
    2. STRLs will release employees from the competitive level (if 
used) with a written decision of removal under 5 CFR 432 or 752 before 
releasing any employee competing in the RIF.
    3. Employees demoted for unacceptable performance who have not 
received a rating on their current position will have ratings of record 
drawn from within the four-year period preceding the cutoff date 
established for the RIF (to include any rating of record of 
``unacceptable''), if the STRL uses multiple ratings in its retention 
factors.
    b. If competitive levels are utilized by an STRL, employees will be 
released beginning with the employee with the lowest retention standing 
on the retention register for that competitive level. An STRL may 
provide for intervening displacement within the competitive level 
before final release of the employee with the lowest retention standing 
from the competitive level.
    c. STRL employees have assignment rights under RIF procedures if 
the current performance appraisal reflects a rating of record of at 
least minimally successful/minimally acceptable.
    d. STRLs may apply assignment rights described in 5 CFR 351.701 or 
other assignment rights as described below.
    1. Single Round. When a specific position is to be abolished, the 
incumbent of that position may displace an employee within the band or 
at the next lower band, as documented in STRL IOPs, when the incumbent 
has a higher retention standing and is fully qualified for a position 
occupied by an employee with a lower retention standing among those 
competing in the RIF. A preference-eligible employee with a compensable 
service-connected disability of 30 percent or more (veterans' 
preference category AD) may displace to positions two bands (or 
equivalent to five grades) below his/her current band. If there is no 
position in which an employee can be placed using this process or 
through assignment to a vacant position, that employee will be 
separated.
    2. Two Round. When reducing positions in the same occupational 
series and pay band, competitive levels--consisting of such positions 
that are similar enough in duties, qualification requirements, and 
working conditions that the incumbent of one position can successfully 
perform the duties of any other position in the competitive level 
without unduly interrupting the work program--will be established. In 
round one, STRLs identify employees for release beginning with the 
employees with the lowest retention standing in the competitive level. 
In round two, within each competitive area, an employee identified for 
release in round one may displace an employee within the band or at the 
next lower band, as documented in STRL IOPs, when the released employee 
has a higher retention standing and is fully qualified for a position 
occupied by an employee with a lower standing among those competing in 
the RIF. A preference-eligible employee with a compensable service-
connected disability of 30 percent or more (veterans' preference 
category AD) may displace to positions two bands (or equivalent to five 
grades) below the band of the position from which he/she is released. 
If there is no position in which an employee can be placed using this 
process or through assignment to a vacant position, that employee will 
be separated.
    3. Retreat during RIF. STRLs may establish procedures permitting an 
employee identified for release to displace an employee within the band 
or at the next lower band when the released employee has a higher 
retention standing than the displaced employee and previously served in 
the displaced employee's position, or an essentially identical 
position, regardless of career path.
    4. Offers of Vacant Position. When an STRL chooses to utilize 
vacancies for which released employees qualify, the STRL must consider 
the relative retention standing of all released employees and must 
offer the position to the released employee with the highest retention 
standing.
    e. Exceptions. STRLs must comply with protections afforded 
employees pursuant to 5 CFR 351.606, including protections under the 
Uniformed Services Employment and Reemployment Rights Act.

III. Required Waivers to Law and Regulations

    The following waivers and adaptations of certain Title 5, U.S.C., 
and Title 5, CFR, provisions are required only to the extent to which 
these statutory and regulatory provisions limit or are inconsistent 
with the actions contemplated under these STRL demonstration project 
RIF procedures. Nothing in this plan is intended to preclude the 
demonstration projects from adopting or incorporating any law or 
regulation enacted, adopted, or amended after the effective date of 
this notice.
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    Dated: July 23, 2021.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2021-16082 Filed 7-27-21; 8:45 am]
BILLING CODE 5001-06-C