[Federal Register Volume 75, Number 239 (Tuesday, December 14, 2010)]
[Rules and Regulations]
[Pages 77753-77756]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-31255]
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DEPARTMENT OF DEFENSE
Office of the Secretary
[Docket ID: DoD-2010-OS-0141; RIN 0790-AI66]
32 CFR Part 241
Pilot Program for the Temporary Exchange of Information
Technology Personnel
AGENCY: Department of Defense (DoD), Assistant Secretary of Defense
(Networks and Information Integration)/DoD Chief Information Officer
(ASD(NII)/DoD CIO).
ACTION: Interim final rule.
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SUMMARY: The Department of Defense (DoD) is issuing regulations to
implement provisions contained in section 1110 of the National Defense
Authorization Act (NDAA) for Fiscal Year (FY) 2010, October 28, 2009,
which authorizes DoD to establish a Pilot Program for the Temporary
Exchange of Information Technology (IT) Personnel. This statute
authorizes the temporary assignments of DoD IT employees to private
sector organizations. This statute also gives DoD the authority to
accept IT employees for temporary assignments from private sector
organizations. This Pilot is envisioned to promote the interchange of
DoD and private sector IT professionals to enhance skills and
competencies. The prompt implementation of an interim final rule is
crucial in assisting DoD to pilot a program to enhance its position and
expertise in the IT field, particularly in cybersecurity.
The Administration has expressed considerable interest in the IT
area, and stressed its importance in a recent Cyberspace Review Report.
Given the changing workforce dynamics in the IT field, DoD needs to
take advantage of these types of professional development programs to
proactively position itself to keep pace with the changes in
technology.
The immediate implementation of an Interim Final Rule is viable to
enhance IT professional skills, particularly in the area of
cybersecurity. Several Components including Defense Information Systems
Agency, Defense
[[Page 77754]]
Advanced Research Projects Agency, Office of Naval Research, Office of
the DoD's Chief Information Officer, and Department Air Force, and
Department of the Army are ready to participate. The program is not
controversial and delayed implementation would deny an important
benefit to the Department and the public. The ITEP would serve the
public good by enhancing the DoD IT workforce skills to protect and
defend our nation.
DATES: Effective December 14, 2010. Comments must be received by
February 14, 2011.
ADDRESSES: You may submit comments, identified by docket number and/or
RIN number and title, by any of the following methods:
Federal Rulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Federal Docket Management System Office, 1160
Defense Pentagon, OSD Mailroom 3C843, Washington, DC 20301-1160.
Instructions: All submissions received must include the agency name
and docket number or Regulatory Information Number (RIN) 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: Tina-Marie Buckman at (703) 699-0105
or by e-mail at [email protected].
SUPPLEMENTARY INFORMATION: This Pilot Program (``Pilot'') is authorized
by section 1110 of the NDAA for FY2010 (Pub. L. 111-84). Section 1110
authorizes DoD Components to assign an exceptional IT employee to a
private sector organization for purposes of training, development and
sharing of best practices. It also gives DoD Components the authority
to accept comparable IT employees on an assignment from the private
sector for the training and development purposes and sharing of best
practices and insight of government practices. DoD is proposing the
addition of a new Part 241, to title 32 of the Code of Federal
Regulations (CFR), entitled ``Pilot Program for the Temporary Exchange
of Information Technology Personnel,'' to implement the Pilot
authorized by Section 1110. This Pilot will be referred to as the
Information Technology Exchange Program (ITEP). The Assistant Secretary
of Defense (Networks & Information Integration)/Department of Defense
Chief Information Officer (ASD(NII)/DoD CIO) is responsible for
administration of ITEP Pilot. Heads of DoD Components have
responsibility for implementation of the Pilot. As required by NDAA
FY2010, an annual reporting requirement on activities carried out for
this information technology exchange program is required to be
submitted to the defense congressional committees.
a. Executive Order 12866, ``Regulatory Planning and Review''
Under Executive Order 12866, ``Regulatory Planning and Review,'' 58
FR 51735 (Oct. 4, 1993), a ``significant regulatory action'' is subject
to Office of Management and Budget (OMB) review and the requirements of
Executive Order 12866. Section 3(f) of the Executive Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
(1) Have an annual effect on the economy of $100 million or more,
or may adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs, or the rights and obligations of
recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
This rule is substantive, non-significant regulatory action under
section 3(f) of Executive Order 12866. OMB has reviewed this rule.
b. Section 202, Public Law 104-4, ``Unfunded Mandates Reform Act''
It has been certified that 32 CFR part 241 does not contain a
Federal mandate that may result in expenditure by state, local and
tribal governments, in aggregate, or by the private sector, of $100
million or more in any one year.
c. Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)
It has been certified that 32 CFR part 241 is not subject to the
Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if
promulgated, have a significant economic impact on a substantial number
of small entities.
d. Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter
35)
It has been certified that 32 CFR part 241 does not impose
reporting or recordkeeping requirements under the Paperwork Reduction
Act of 1995.
e. Executive Order 13132, ``Federalism''
It has been certified that 32 CFR part 241 does not have federalism
implications, as set forth in Executive Order 13132. This rule does not
have substantial direct effects on:
(1) The States;
(2) The relationship between the National Government and the
States; or
(3) The distribution of power and responsibilities among the
various levels of Government.
List of Subjects in 32 CFR Part 241
Government employees, information technology.
0
Accordingly, 32 CFR part 241 is added to read as follows:
PART 241--PILOT PROGRAM FOR TEMPORARY EXCHANGE OF INFORMATION
TECHNOLOGY PERSONNEL
Sec.
241.1 Purpose.
241.2 Definitions.
241.3 Assignment authority.
241.4 Eligibility.
241.5 Written agreements.
241.6 Length of assignments.
241.7 Termination.
241.8 Terms and conditions.
241.9 Costs and reimbursements.
241.10 Small business consideration.
241.11 Numerical limitation.
241.12 Reporting requirements.
241.13 Implementation.
Authority: Pub. L. 111-84, section 1110, October 28, 2009.
Sec. 241.1 Purpose.
(a) The purpose of this part is to implement section 1110 of the
National Defense Authorization Act for Fiscal Year 2010 (Pub. L. 111-
84), which authorizes DoD to implement a Pilot Program for the
Temporary Exchange of Information Technology (IT) Personnel. This
statute authorizes the temporary assignment of IT employees between DoD
and private sector organizations. This statute also gives DoD the
authority to accept private sector IT employees assigned under the
Pilot. This Pilot is referred to as the Information Technology Exchange
Program (ITEP).
(b) Heads of DoD Components may approve assignments as a mechanism
for improving the DoD workforce's competency in using IT to deliver
government information and services. Heads of DoD Components may not
[[Page 77755]]
make assignments under this part to circumvent personnel ceilings, or
as a substitute for other more appropriate personnel decisions or
actions. Approved assignments must meet the strategic program goals of
the DoD Components. The benefits to the DoD Components and the private
sector organizations are the primary considerations in initiating
assignments; not the desires or personal needs of an individual
employee.
Sec. 241.2 Definitions.
In this part:
Assignment means the detail of a DoD employee to a private sector
organization without a change of position; or the assignment of a
private sector employee to a DoD Component without a change of
position.
DoD employee means a Federal civilian employee of the DoD.
Exceptional employee for the purposes of this pilot means an
employee who demonstrates unusually good performance which is
consistently better than expected at the fully successful level or
above. Performance meets or exceeds all standards established at the
fully successful level or above and makes significant contributions
towards achieving the organizational goals.
Information technology (IT) as defined in section 11101 of title
40, U.S.C. includes computers, ancillary equipment (including imaging
peripherals, input, output, and storage devices necessary for security
and surveillance), peripheral equipment designed to be controlled by
the central processing unit of a computer, software, firmware and
similar procedures, services (including support services), and related
resources.
Information Technology Management (ITM) means the planning,
organizing, staffing, directing, integrating, or controlling of
information technology, including occupational specialty areas such as
systems administration, IT project management, network services,
operating systems, software application, cybersecurity, enterprise
architecture, policy and planning, internet/web services, customer
support, data management and systems analysis.
Private sector organization means nonpublic or commercial
individuals and businesses, nonprofit organizations, academia,
scholastic institutions, and nongovernmental organizations.
Small business concern means a business concern that satisfies the
definitions and standards by the Administrator of the Small Business
Administration (SBA) as defined by section 3703 (e)(2)(A) of title 5,
U.S.C.
Sec. 241.3 Assignment authority.
The Secretary of Defense may with the agreement, of the private
sector organization concerned, arrange for the temporary assignment of
an employee to such a private sector organization or from such a
private sector organization to a DoD Component.
Sec. 241.4 Eligibility.
(a) To be eligible for an ITEP assignment, a DoD or private sector
employee must:
(1) Work in the field of information technology management;
(2) Be considered an exceptional employee;
(3) Be expected to assume increased information technology
management responsibilities in the future; and
(4) Must be compensated at the GS-11 level or above (or the
equivalent).
(b) In addition to meeting the requirements of paragraph (a) of
this section, the DoD employee must be serving under a career or
career-conditional appointment or an appointment of equivalent tenure
in the excepted service.
(c) The private sector employee must meet citizenship requirements
for Federal employment in accordance with 5 CFR 7.3 and 338.101, as
well as any other statutory requirements. When a position requires a
security clearance, the person must possess, or be able to obtain an
appropriate security clearance.
(d) Proposed assignment meets applicable requirements of section
209(b) of the E-Government Act of 2002.
Sec. 241.5 Written agreements.
(a) Before an assignment begins, the head of the DoD Component,
private sector organization and the employee to be assigned to ITEP
must sign a three-party agreement. Prior to the agreement being signed
the relevant legal office for the DoD Component shall review and
approve the agreement. The agreement must include, but is not limited
to the following elements:
(1) The duties to be performed and length of assignment;
(2) An individual development plan describing the core IT
competencies and technical skills that the detailee will be expected to
enhance or acquire;
(3) Identification of the supervisor of detailee.
(b) The agreement shall require DoD employees, upon completion of
the assignment serve in the civil service for a period equal to the
length of the assignment; and
(c) Provide that if the employee of the DoD or of the private
sector organization (as the case may be) fails to carry out the
agreement, such employee shall be liable to the United States for
payment of all expenses of the assignment, unless that failure was for
good and sufficient reason as determined by the Secretary of Defense.
Sec. 241.6 Length of assignments.
(a) An assignment shall be for a period of not less than 3 months
and not more than 1 year, and may be extended in 3-month increments for
a total of not more than 1 additional year by heads of DoD Components
and private sector organizations.
(b) No assignment may commence after September 30, 2013, unless an
individual began an assignment by September 30, 2013. This extension
may be granted in 3-month increments not to exceed 1 year.
Sec. 241.7 Termination.
An assignment may, at any time and for any reason be terminated by
the DoD or the private sector organization concerned.
Sec. 241.8 Terms and conditions.
(a) A DoD employee assigned under this part:
(1) Remains a Federal employee without loss of employee rights and
benefits attached to that status. These include, but are not limited
to:
(i) Consideration for promotion;
(ii) Leave accrual;
(iii) Continuation of retirement benefits and health, life, and
long-term care insurance benefits; and
(iv) Pay increases the employee otherwise would have received if he
or she had not been assigned;
(2) Remains covered for purposes of the Federal Tort Claims Act,
and for purposes of injury compensation as described in 5 U.S.C.
chapter 81; and
(3) Is subject to any action that may impact the employee's
position while he or she is assigned.
(b) An employee of a private sector organization:
(1) May continue to receive pay and benefits from the private
sector organization from which such employee is assigned;
(2) Is deemed to be an employee of the DoD for the purposes of:
(i) Chapter 73 of title 5, United States Code (Suitability,
Security, and Conduct);
(ii) Sections 201 (Bribery of Public Officials and Witnesses), 203
(Compensation to Members of Congress, Officers and Employees Against
and Other Matters Affecting the Government) 205, (Activities of
Officers and Employees in Claims Against Other
[[Page 77756]]
Matters Affecting the Government), 207 (Restrictions on Former
Officers, Employees, and Elected Officials of the Executive and
Legislative Branches), 208 (Acts Affecting a Personal Financial
Interest), 209 (Salary of Government Officials and Employees Payable
only by the United States), 603 (Making Political Contributions), 606
(Intimidation to Secure Political Contributions), 607, (Place of
Solicitation), 643 (Accounting Generally for Public Money), 654
(Officer or Employee of the United States Converting Property of
Another, 1905 (Disclosure of Confidential Information Generally), and
1913 (Lobbying with Appropriated Moneys) of title 18, United States
Code;
(iii) Sections 1343, 1344, and 1349 (b) of title 31, United States
Code;
(iv) The Federal Tort Claims Act and any other Federal tort
liability statute;
(v) The Ethics in Government Act of 1978;
(vi) Section 1043 of the Internal Revenue Code of 1986; and
(vii) Section 27 of the Office of Federal Procurement Policy Act;
and
(3) May not have access to any trade secrets or to any other
nonpublic information which is of commercial value to the private
sector organization from which he or she is assigned;
(4) Is subject to such regulations as the President may prescribe;
and
(5) Is covered by 5 U.S.C. chapter 81, Compensation for Work
Injuries.
(6) Does not have any right or expectation for Federal employment
solely on the basis of his or her assignment.
Sec. 241.9 Costs and reimbursements.
(a) Payment of salary and allowances. The lending organization (DoD
or private sector organization) has full responsibility for payment of
all salary and allowances to their employee participating in an ITEP
assignment.
(b) Business training and travel expenses. The engaging
organization may pay for any business training and travel expenses
incurred by the employee while on an ITEP assignment.
(c) Prohibition. A private sector organization may not charge the
DoD or any agency of the Federal Government, as direct or indirect
costs under a Federal contract, for the costs of pay or benefits paid
by that organization to an employee assigned to a DoD Component.
Sec. 241.10 Small business consideration.
The ASD(NII)/DoD CIO on behalf of the Secretary of Defense shall:
(a) Ensure that, of the assignments made each year, at least 20
percent are small business concerns (as defined by 5 U.S.C.
3703(e)(2)(A)).
(b) Take into consideration the questions of how assignments might
be used to help meet the needs of the DoD with respect to the training
of employees in ITM.
Sec. 241.11 Numerical limitation.
The ITEP Pilot is an opportunity for the exchange of knowledge,
experience and skills between DoD and the private sector. The DoD has
the flexibility to send their employees to the private sector or
receive private sector employees, or participate in a one-for-one
exchange. In no event may more than 10 employees participate in
assignments under this section at any given time.
Sec. 241.12 Reporting requirements.
(a) For each of fiscal years 2010 through 2015, the Secretary of
Defense shall submit annual reports to the congressional defense
committees, not later than 1 month after the end of the fiscal year
involved, a report on any activities carried out during such fiscal
year, including the following information:
(1) Respective organizations to and from which an employee is
assigned;
(2) Positions those employees held while they were so assigned;
(3) Description of the tasks they performed while they were so
assigned; and
(4) Discussion of any actions that might be taken to improve the
effectiveness of the Pilot program, including any proposed changes in
the law.
(b) These reports will be prepared and submitted by ASD(NII)/DoD
CIO in coordination with DoD Components participating in the pilot, to
the appropriate congressional committees.
Sec. 241.13 Implementation.
The ASD(NII)/DoD CIO is responsible for administering, coordinating
and implementing the Pilot Program for the Temporary Exchange of
Information Personnel, referred to as the Information Technology
Exchange Program (ITEP). The ASD(NII)/DoD CIO will coordinate with DoD
Components.
Dated: December 7, 2010.
Patricia L. Toppings,
OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2010-31255 Filed 12-13-10; 8:45 am]
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