1 See References in Text note below.
of title 10; and
Editorial Notes
References in TextSection 115span of title 10, referred to in subsec. (c)(8), was repealed by Puspan. L. 114–328, div. A, title XI, § 1102(a), Dec. 23, 2016, 130 Stat. 2444.
The Defense Base Closure and Realignment Act of 1990, referred to in subsec. (f)(2)(A), is part A of title XXIX of div. B of Puspan. L. 101–510, Nov. 5, 1990, 104 Stat. 1808, which is set out as a note under section 2687 of Title 10, Armed Forces. For complete classification of this Act to the Code, see Tables.
The date of the enactment of the Federal Workforce Restructuring Act of 1994, referred to in subsec. (f)(6)(B), is the date of enactment of Puspan. L. 103–226, which was approved Mar. 30, 1994.
The date of the enactment of the National Defense Authorization Act for Fiscal Year 2004, referred to in subsec. (g)(2)(A), is the date of enactment of Puspan. L. 108–136, which was approved Nov. 24, 2003.
Amendments2023—Subsec. (h)(1)(B). Puspan. L. 118–31, § 1120(1), struck out “and the Comptroller General,” after “committees of Congress”.
Subsec. (h)(2), (3). Puspan. 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).
2011—Subsec. (a)(1)(D), (E). Puspan. L. 112–81, § 1101(a), added subpar. (D) and redesignated former subpar. (D) as (E).
Subsec. (a)(2). Puspan. L. 111–383, § 1075(a)(2), substituted “chapter” for “chapters” in two places.
Subsec. (span)(5), (6). Puspan. L. 112–81, § 1101(span), added pars. (5) and (6).
Subsec. (c)(6) to (9). Puspan. L. 112–81, § 1101(c), added pars. (6) and (7) and redesignated former pars. (6) and (7) as (8) and (9), respectively.
Subsec. (g)(3), (4). Puspan. L. 111–383, § 1101(c), amended directory language of Puspan. L. 111–84, § 1121. See 2009 Amendment note below.
Subsec. (h). Puspan. L. 112–81, § 1102(a), added subsec. (h).
2009—Puspan. L. 111–84, § 1113(f)(1), amended section catchline generally, substituting “Department of Defense personnel authorities” for “Establishment of human resources management system”.
Puspan. L. 111–84, § 1113(span)(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. (span)(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.
Subsec. (g)(3), (4). Puspan. L. 111–84, § 1121, as amended by Puspan. 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.
2008—Puspan. 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. (span), 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.
Subsec. (i). Puspan. L. 110–417 substituted “the requirements and limitations in paragraph (3)” for “the requirements of chapter 71 and the limitations in subsection (span)(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).
Statutory Notes and Related Subsidiaries
Change of NameCommittee on Government Reform of House of Representatives changed to Committee on Oversight and Government Reform of House of Representatives by House Resolution No. 6, One Hundred Tenth Congress, Jan. 5, 2007. Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019. Committee on Oversight and Reform of House of Representatives changed to Committee on Oversight and Accountability of House of Representatives by House Resolution No. 5, One Hundred Eighteenth Congress, Jan. 9, 2023.
Committee on Governmental Affairs of Senate changed to Committee on Homeland Security and Governmental Affairs of Senate, effective Jan. 4, 2005, by Senate Resolution No. 445, One Hundred Eighth Congress, Oct. 9, 2004.
Effective Date of 2011 AmendmentPuspan. L. 111–383, div. A, title XI, § 1101(d), Jan. 7, 2011, 124 Stat. 4382, provided that:“(1) Except as provided in paragraph (2), the amendments made by this section [amending this section and provisions set out as notes preceding section 1580 and under section 4121 of Title 10, Armed Forces] shall take effect as of October 28, 2009.
“(2) The amendment made by subsection (a)(2) [amending provisions set out as a note preceding section 1580 of Title 10] shall take effect as of the date of enactment of this Act [Jan. 7, 2011].”
References to Puspan. L. 111–383Puspan. L. 111–383, § 1(span), Jan. 7, 2011, 124 Stat. 4137, provided that: “Any reference in this or any other Act to the ‘National Defense Authorization Act for Fiscal Year 2011’ shall be deemed to refer to the ‘Ike Skelton National Defense Authorization Act for Fiscal Year 2011’.”
Temporary Increase in Maximum Amount of Voluntary Separation Incentive Pay Authorized for Civilian Employees of the Department of DefensePuspan. L. 114–328, div. A, title XI, § 1107, Dec. 23, 2016, 130 Stat. 2448, as amended by Puspan. L. 115–91, div. A, title XI, § 1103(a), Dec. 12, 2017, 131 Stat. 1629, provided that: “During the period beginning on the date of enactment of this Act [Dec. 23, 2016] and ending on September 30, 2021, section 9902(f)(5)(A)(ii) of title 5, United States Code, shall be applied by substituting ‘an amount determined by the Secretary, not to exceed $40,000’ for ‘$25,000’.”
Reports on Performance Management System and Appointment ProceduresPuspan. L. 112–81, div. A, title XI, § 1102(span), Dec. 31, 2011, 125 Stat. 1611, which directed the Secretary of Defense to submit reports on performance management system and appointment procedures, was repealed by Puspan. L. 115–91, div. A, title X, § 1051(q)(1), Dec. 12, 2017, 131 Stat. 1565.
Provisions Relating to the National Security Personnel SystemPuspan. L. 111–84, div. A, title XI, § 1113(a)–(g), Oct. 28, 2009, 123 Stat. 2498–2502, as amended by Puspan. L. 111–383, div. A, title X, § 1075(d)(17), Jan. 7, 2011, 124 Stat. 4373; Puspan. L. 112–81, div. A, title XI, § 1102(c)(2), Dec. 31, 2011, 125 Stat. 1612, provided that:“(a)Definitions.—For purposes of this section—“(1) the term ‘National Security Personnel System’ or ‘NSPS’ refers to a human resources management system established under authority of section 9902 of title 5, United States Code (as in effect before the date of the enactment of this Act [Oct. 28, 2009]); and
“(2) the term ‘statutory pay system’ means a pay system under—“(A) subchapter III of chapter 53 of title 5, United States Code (relating to General Schedule pay rates); or
“(B) such other provisions of law as would apply if section 9902 of title 5, United States Code, had never been enacted.
“(span)Repeal of Provisions Relating to NSPS.—“(2)Expansion prohibited.—The National Security Personnel System may not be extended to any organizational or functional unit of the Department of Defense (or any component thereof) not included in such System as of March 1, 2009.
“(3)Current rules invalid.—Any regulations in effect as of the day before the date of the enactment of this Act [Oct. 28, 2009] which were issued pursuant to any provision of law repealed by paragraph (1)(A)—“(A) may not be modified on or after the date of the enactment of this Act, except as necessary to implement this Act [see Tables for classification]; and
“(B) shall cease to be effective as of January 1, 2012.
“(c)Termination of NSPS and Conversion of Employees and Positions.—“(1)In general.—The Secretary of Defense shall take all actions which may be necessary to provide, beginning no later than 6 months after the date of enactment of this Act [Oct. 28, 2009], for the orderly termination of the National Security Personnel System and conversion of all employees and positions from such System, by not later than January 1, 2012, to—“(A) the statutory pay system and all other aspects of the personnel system that last applied to such employee or position (as the case may be) before the National Security Personnel System applied; or
“(B) if subparagraph (A) does not apply, the statutory pay system and all other aspects of the personnel system that would have applied if the National Security Personnel System had never been established.
No employee shall suffer any loss of or decrease in pay because of the preceding sentence, and, for purposes of carrying out such preceding sentence, any determination of the system that last applied (or that would have applied) with respect to an employee or position shall take into account any modifications to such system pursuant to the provisions of subsections (a) and (span) of section 9902 of title 5, United States Code, as amended by subsection (d).
“(2)Transition period appointments.—To the extent practicable, any individual who, during the NSPS transition period, is appointed to any position within the Department of Defense which is subject to the NSPS shall be subject to the statutory pay system and all other aspects of the personnel system to which such individual or position is to be converted in accordance with the requirements of paragraph (1).
“(3)Temporary continuation of nsps.—Notwithstanding any other provision of this section, the National Security Personnel System, as in effect on the day before the date of the enactment of this Act, shall continue to apply with respect to any employees and positions remaining subject to the NSPS, in accordance with paragraph (1), during the NSPS transition period.
“(4)Restoration of full annual pay adjustments under nsps pending its termination.—Notwithstanding subsection (span)(1)(A) [amending this section], section 9902(e)(7) of title 5, United States Code, to the extent that it remains in force under paragraph (3), shall be applied by substituting ‘100 percent’ for ‘no less than 60 percent’.
“(5)NSPS transition period defined.—For purposes of this subsection, the term ‘NSPS transition period’ means the period beginning on the date of the enactment of this Act and ending on January 1, 2012.
“(d)Authority Relating to Performance Management and Workforce Incentives, Hiring Flexibilities, and Training of Supervisors.— “[(e) Repealed. Puspan. L. 112–81, div. A, title XI, § 1102(c)(2), Dec. 31, 2011, 125 Stat. 1612.]
“(f)Clerical Amendments.—[Amended this section and analysis preceding section 9901 of this title.]
“(g)Other Personnel Flexibilities.—“(1)In general.—If the Secretary of Defense determines that it would be in the best interest of the Department of Defense to implement personnel flexibilities in addition to those authorized under section 9902 of title 5, United States Code, as amended by this section, the Secretary, in coordination with the Director of the Office of Personnel Management, may develop and submit to the covered committees, not later than 6 months after the date of the enactment of this Act [Oct. 28, 2009], a proposal to implement—“(A) additional personnel flexibilities and associated statutory waivers with respect to the application of the General Schedule (as defined in section 5332 of title 5, United States Code); or
“(B) additional personnel flexibilities and associated statutory waivers, which would require exemption from the application of the General Schedule (as so defined).
“(2)Rationale.—If the Secretary’s proposal is to implement authorities described in paragraph (1)(B), the Secretary shall provide a detailed rationale as to why implementation of authorities described in paragraph (1)(A) are not adequate or appropriate to meet the interests of the Department.
“(3)Requirements.—The Secretary’s proposal (whether as described in paragraph (1)(A) or (1)(B))—“(A) shall be developed in a manner consistent with the requirements of subsections (c) and (d) of section 9902 of title 5, United States Code, as amended by this section;
“(B) shall include a description of proposed regulations and implementing rules that the Secretary plans to adopt for the proposed system;
“(C) shall identify and provide a rationale for any statutory waiver that would be required to implement the proposed system;
“(D) shall describe the steps that the Department would take to avoid problems of the type described in the report of the Defense Business Board, dated August 2009, regarding the National Security Personnel System; and
“(E) may not provide for the waiver of any provision of law that cannot be waived under paragraph (3) of section 9902(span) of title 5, United States Code (as in effect on the day before the date of the enactment of this Act), and shall be subject to the requirements in paragraphs (4) and (5) of such section (as then in effect).
“(4)Congressional approval required.—If Congress approves the Secretary’s proposal in the National Defense Authorization Act for Fiscal Year 2011, the Secretary may implement the proposal (subject to any changes required by law) and begin the implementation of such proposal for personnel included in the National Security Personnel System, in lieu of the transition that would otherwise be required by subsection (span), subject to paragraph (5).
“(5)Restrictions.—Notwithstanding any approval under paragraph (4), the provisions of subsection (span)(2) and (c)(4) shall apply with respect to any proposal approved under such paragraph, unless and until modified or repealed in legislation enacted after the date of the enactment of this Act.
“(6)Definitions.—For purposes of this subsection, the term ‘covered committees’ 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 [now Committee on Oversight and Accountability] of the House of Representatives.”
ImplementationPuspan. L. 110–181, div. A, title XI, § 1106(span), Jan. 28, 2008, 122 Stat. 356, which related to implementation of requirements of this section as amended by Puspan. L. 110–181, was repealed by Puspan. L. 111–84, div. A, title XI, § 1113(h)(1), Oct. 28, 2009, 123 Stat. 2503.
Civilian PayPuspan. L. 109–13, div. A, title I, § 1020, May 11, 2005, 119 Stat. 251, provided that: “None of the funds appropriated to the Department of Defense by this Act or any other Act for fiscal year 2005 or any other fiscal year may be expended for any pay raise granted on or after January 1, 2005, that is implemented in a manner that provides a greater increase for non-career employees than for career employees on the basis of their status as career or non-career employees, unless specifically authorized by law: Provided, That this provision shall be implemented for fiscal year 2005 without regard to the requirements of section 5383 of title 5, United States Code: Provided further, That no employee of the Department of Defense shall have his or her pay reduced for the purpose of complying with the requirements of this provision.”
Pilot Program for Improved Civilian Personnel ManagementPuspan. L. 108–136, div. A, title XI, § 1111, Nov. 24, 2003, 117 Stat. 1634, authorized the Secretary of Defense to carry out a pilot program using an automated workforce management system to demonstrate improved efficiency in the performance of civilian personnel management and provided that the Secretary could carry out the pilot program for a period of two years beginning not later than Mar. 1, 2004.
