5 U.S.C. § 9701 — Establishment of human resources man-

Page 1299 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 9701 (c) An individual appointed under this sec- tion— (1) becomes a career-conditional employee, unless the employee has otherwise completed the service requirements for career tenure; and (2) acquires competitive status upon ap- pointment. (d) A former employee of a land management agency who served under a time-limited ap- pointment and who otherwise meets the require- ments of this section shall be deemed a time- limited employee of the agency from which the former employee was most recently separated for purposes of this section if— (1) such employee applies for a position cov- ered by this section within the period of 2 years after the most recent date of separation; and (2) such employee’s most recent separation was for reasons other than misconduct or per- formance. (e) The Office of Personnel Management shall prescribe such regulations as may be necessary to carry out this section. (Added Pub. L. 114–47, § 2(a), Aug. 7, 2015, 129 Stat. 485; amended Pub. L. 114–328, div. A, title XI, § 1135, Dec. 23, 2016, 130 Stat. 2459.) Editorial Notes AMENDMENTS 2016—Subsec. (a). Pub. L. 114–328, § 1135(1), substituted in introductory provisions ‘‘such land management agency when such agency is accepting applications from individuals within the agency’s workforce under merit promotion procedures, or any agency, including a land management agency, when the agency is accepting applications from individuals outside its own workforce under the merit promotion procedures of the applicable agency’’ for ‘‘any land management agency or any other agency (as defined in section 101 of title 31) under the internal merit promotion procedures of the applica- ble agency’’. Subsec. (d). Pub. L. 114–328, § 1135(2), inserted ‘‘of the agency from which the former employee was most re- cently separated’’ after ‘‘deemed a time-limited em- ployee’’ in introductory provisions. CHAPTER 97—DEPARTMENT OF HOMELAND SECURITY Sec. 9701. Establishment of human resources manage- ment system. § 9701. Establishment of human resources man- agement system (a) IN GENERAL.—Notwithstanding any other provision of this part, the Secretary of Home- land Security may, in regulations prescribed jointly with the Director of the Office of Per- sonnel Management, establish, and from time to time adjust, a human resources management system for some or all of the organizational units of the Department of Homeland Security. (b) SYSTEM REQUIREMENTS.—Any system es- tablished 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 po- litical affiliation or other nonmerit consid- erations, equal pay for equal work, and pro- tection 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 op- portunity through affirmative action; or (II) providing any right or remedy avail- able to any employee or applicant for em- ployment in the civil service; (D) any other provision of this part (as de- scribed in subsection (c)); or (E) any rule or regulation prescribed under any provision of law referred to in any of the preceding subparagraphs of this paragraph; (4) ensure that employees may organize, bar- gain collectively, and participate through labor organizations of their own choosing in decisions which affect them, subject to any ex- clusion from coverage or limitation on nego- tiability established by law; and (5) permit the use of a category rating sys- tem for evaluating applicants for positions in the competitive service. (c) OTHER NONWAIVABLE PROVISIONS.—The other provisions of this part as referred to in subsection (b)(3)(D), are (to the extent not oth- erwise specified in subparagraph (A), (B), (C), or (D) of subsection (b)(3))— (1) subparts A, B, E, G, and H of this part; and (2) chapters 41, 45, 47, 55, 57, 59, 72, 73, and 79, and this chapter. (d) LIMITATIONS RELATING TO PAY.—Nothing in this section shall constitute authority— (1) to modify the pay of any employee who serves in— (A) an Executive Schedule position under subchapter II of chapter 53 of title 5, United States Code; or (B) a position for which the rate of basic pay is fixed in statute by reference to a sec- tion or level under subchapter II of chapter 53 of such title 5; (2) to fix pay for any employee or position at an annual rate greater than the maximum amount of cash compensation allowable under section 5307 of such title 5 in a year; or (3) to exempt any employee from the appli- cation of such section 5307. (e) PROVISIONS TO ENSURE COLLABORATION WITH EMPLOYEE REPRESENTATIVES.— (1) IN GENERAL.—In order to ensure that the authority of this section is exercised in col- laboration with, and in a manner that ensures the participation of employee representatives in the planning, development, and implemen- tation of any human resources management system or adjustments to such system under this section, the Secretary of Homeland Secu- Page 1300 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 9701 rity and the Director of the Office of Per- sonnel Management shall provide for the fol- lowing: (A) NOTICE OF PROPOSAL.—The Secretary and the Director shall, with respect to any proposed system or adjustment— (i) provide to each employee representa- tive representing any employees who might be affected, a written description of the proposed system or adjustment (in- cluding the reasons why it is considered necessary); (ii) give each representative 30 calendar days (unless extraordinary circumstances require earlier action) to review and make recommendations with respect to the pro- posal; and (iii) give any recommendations received from any such representatives under clause (ii) full and fair consideration in de- ciding whether or how to proceed with the proposal. (B) PRE-IMPLEMENTATION CONGRESSIONAL NOTIFICATION, CONSULTATION, AND MEDI- ATION.—Following receipt of recommenda- tions, if any, from employee representatives with respect to a proposal described in sub- paragraph (A), the Secretary and the Direc- tor shall accept such modifications to the proposal in response to the recommenda- tions as they determine advisable and shall, with respect to any parts of the proposal as to which they have not accepted the rec- ommendations— (i) notify Congress of those parts of the proposal, together with the recommenda- tions of employee representatives; (ii) meet and confer for not less than 30 calendar days with any representatives who have made recommendations, 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 re- quested by a majority of the employee rep- resentatives who have made recommenda- tions, use the services of the Federal Medi- ation and Conciliation Service during such meet and confer period to facilitate the process of attempting to reach agreement. (C) IMPLEMENTATION.— (i) Any part of the proposal as to which the representatives do not make a rec- ommendation, or as to which their rec- ommendations are accepted by the Sec- retary and the Director, may be imple- mented immediately. (ii) With respect to any parts of the pro- posal as to which recommendations have been made but not accepted by the Sec- retary and the Director, at any time after 30 calendar days have elapsed since the ini- tiation of the congressional notification, consultation, and mediation procedures set forth in subparagraph (B), if the Sec- retary determines, in the Secretary’s sole and unreviewable discretion, that further consultation and mediation is unlikely to produce agreement, the Secretary may im- plement any or all of such parts, including any modifications made in response to the recommendations as the Secretary deter- mines advisable. (iii) The Secretary shall promptly notify Congress 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 re- sult of recommendations from employee representatives, and of the reasons why implementation is appropriate under this subparagraph. (D) CONTINUING COLLABORATION.—If a pro- posal described in subparagraph (A) is imple- mented, the Secretary and the Director shall— (i) develop a method for each employee representative to participate in any fur- ther planning or development which might become necessary; and (ii) give each employee representative adequate access to information to make that participation productive. (2) PROCEDURES.—Any procedures necessary to carry out this subsection shall be estab- lished by the Secretary and the Director joint- ly as internal rules of departmental procedure which shall not be subject to review. Such pro- cedures shall include measures to ensure— (A) in the case of employees within a unit with respect to which a labor organization is accorded exclusive recognition, representa- tion by individuals designated or from among individuals nominated by such orga- nization; (B) in the case of any employees who are not within such a unit, representation by any appropriate organization which rep- resents a substantial percentage of those employees or, if none, in such other manner as may be appropriate, consistent with the purposes of the subsection; (C) the fair and expeditious handling of the consultation and mediation process de- scribed in subparagraph (B) of paragraph (1), including procedures by which, if the num- ber of employee representatives providing recommendations exceeds 5, such represent- atives select a committee or other unified representative with which the Secretary and Director may meet and confer; and (D) the selection of representatives in a manner consistent with the relative number of employees represented by the organiza- tions or other representatives involved. (f) PROVISIONS RELATING TO APPELLATE PROCE- DURES.— (1) SENSE OF CONGRESS.—It is the sense of Congress that— (A) employees of the Department are enti- tled to fair treatment in any appeals that they bring in decisions relating to their em- ployment; and (B) in prescribing regulations for any such appeals procedures, the Secretary and the Director of the Office of Personnel Manage- ment— (i) should ensure that employees of the Department are afforded the protections of due process; and Page 1301 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 9801 (ii) toward that end, should be required to consult with the Merit Systems Protec- tion Board before issuing any such regula- tions. (2) REQUIREMENTS.—Any regulations under this section which relate to any matters with- in the purview of chapter 77— (A) shall be issued only after consultation with the Merit Systems Protection Board; (B) shall ensure the availability of proce- dures which shall— (i) be consistent with requirements of due process; and (ii) provide, to the maximum extent practicable, for the expeditious handling of any matters involving the Department; and (C) shall modify procedures under chapter 77 only insofar as such modifications are de- signed to further the fair, efficient, and ex- peditious resolution of matters involving the employees of the Department. (g) PROVISIONS RELATING TO LABOR-MANAGE- MENT RELATIONS.—Nothing in this section shall be construed as conferring authority on the Sec- retary of Homeland Security to modify any of the provisions of section 842 of the Homeland Se- curity Act of 2002. (h) SUNSET PROVISION.—Effective 5 years after the conclusion of the transition period defined under section 1501 of the Homeland Security Act of 2002, all authority to issue regulations under this section (including regulations which would modify, supersede, or terminate any regulations previously issued under this section) shall cease to be available. (Added Pub. L. 107–296, title VIII, § 841(a)(2), Nov. 25, 2002, 116 Stat. 2230.) Editorial Notes REFERENCES IN TEXT Section 842 of the Homeland Security Act of 2002, re- ferred to in subsec. (g), is classified to section 412 of Title 6, Domestic Security. Section 1501 of the Homeland Security Act of 2002, re- ferred to in subsec. (h), is classified to section 541 of Title 6, Domestic Security. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 60 days after Nov. 25, 2002, see sec- tion 4 of Pub. L. 107–296, set out as a note under section 101 of Title 6, Domestic Security. ALLOWANCES AND BENEFITS FOR PERSONNEL ABROAD Pub. L. 111–83, title V, § 546, Oct. 28, 2009, 123 Stat. 2177, provided that: ‘‘For fiscal year 2010 and thereafter, the Secretary [of Homeland Security] may provide to personnel appointed or assigned to serve abroad, allow- ances and benefits similar to those provided under chapter 9 of title I of the Foreign Service Act of 1990 [1980] (22 U.S.C. 4081 et seq.).’’ CHAPTER 98—NATIONAL AERONAUTICS AND SPACE ADMINISTRATION Sec. 9801. Definitions. 9802. Planning, notification, and reporting require- ments. Sec. 9803. Restrictions. 9804. Recruitment, redesignation, and relocation bonuses. 9805. Retention bonuses. 9806. Term appointments. 9807. Pay authority for critical positions. 9808. Assignments of intergovernmental personnel. 9809. Science and technology scholarship program. 9810. Distinguished scholar appointment authority. 9811. Travel and transportation expenses of certain new appointees. 9812. Annual leave enhancements. 9813. Limited appointments to Senior Executive Service positions. 9814. Qualifications pay. 9815. Reporting requirement. § 9801. Definitions For purposes of this chapter— (1) the term ‘‘Administration’’ means the National Aeronautics and Space Administra- tion; (2) the term ‘‘Administrator’’ means the Ad- ministrator of the National Aeronautics and Space Administration; (3) the term ‘‘critical need’’ means a specific and important safety, management, engineer- ing, science, research, or operations require- ment of the Administration’s mission that the Administration is unable to fulfill because the Administration lacks the appropriate employ- ees because— (A) of the inability to fill positions; or (B) employees do not possess the requisite skills; (4) the term ‘‘employee’’ means an indi- vidual employed in or under the Administra- tion; (5) the term ‘‘workforce plan’’ means the plan required under section 9802(a); (6) the term ‘‘appropriate committees of Congress’’ means— (A) the Committees on Government Re- form, Science, and Appropriations of the House of Representatives; and (B) the Committees on Governmental Af- fairs, Commerce, Science, and Transpor- tation, and Appropriations of the Senate; (7) the term ‘‘redesignation bonus’’ means a bonus under section 9804 paid to an individual described in subsection (a)(2) thereof; (8) the term ‘‘supervisor’’ has the meaning given such term by section 7103(a)(10); and (9) the term ‘‘management official’’ has the meaning given such term by section 7103(a)(11). (Added Pub. L. 108–201, § 3(a), Feb. 24, 2004, 118 Stat. 461.) Statutory Notes and Related Subsidiaries CHANGE OF NAME Committee on Government Reform of House of Rep- resentatives 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 Com- mittee on Oversight and Reform of House of Represent- atives by House Resolution No. 6, One Hundred Six- teenth Congress, Jan. 9, 2019. Committee on Oversight