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5 USC CHAPTER 97 - DEPARTMENT OF HOMELAND SECURITY 01/06/03

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TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES

PART III - EMPLOYEES

Subpart I - Miscellaneous

CHAPTER 97 - DEPARTMENT OF HOMELAND SECURITY

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CHAPTER 97 - DEPARTMENT OF HOMELAND SECURITY

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Sec.

9701. Establishment of human resources management system.

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CHAPTER REFERRED TO IN OTHER SECTIONS

This chapter is referred to in title 6 section 411.

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5 USC Sec. 9701 01/06/03

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TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES

PART III - EMPLOYEES

Subpart I - Miscellaneous

CHAPTER 97 - DEPARTMENT OF HOMELAND SECURITY

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Sec. 9701. Establishment of human resources management system

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(a) In General. - Notwithstanding any other provision of this

part, the Secretary of Homeland Security may, in regulations

prescribed jointly with the Director of the Office of Personnel

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 established 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 political

affiliation or other nonmerit considerations, equal pay for

equal work, and protection 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 opportunity through

affirmative action; or

(II) providing any right or remedy available to any

employee or applicant for employment in the civil service;

(D) any other provision of this part (as described 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, bargain collectively,

and participate through labor organizations of their own choosing

in decisions which affect them, subject to any exclusion from

coverage or limitation on negotiability established by law; and

(5) permit the use of a category rating system 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

otherwise 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 section 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 application 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 collaboration with, and in a manner that

ensures the participation of employee representatives in the

planning, development, and implementation of any human resources

management system or adjustments to such system under this

section, the Secretary of Homeland Security and the Director of

the Office of Personnel Management shall provide for the

following:

(A) Notice of proposal. - The Secretary and the Director

shall, with respect to any proposed system or adjustment -

(i) provide to each employee representative representing

any employees who might be affected, a written description of

the proposed system or adjustment (including 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 proposal; and

(iii) give any recommendations received from any such

representatives under clause (ii) full and fair consideration

in deciding whether or how to proceed with the proposal.

(B) Pre-implementation congressional notification,

consultation, and mediation. - Following receipt of

recommendations, if any, from employee representatives with

respect to a proposal described in subparagraph (A), the

Secretary and the Director shall accept such modifications to

the proposal in response to the recommendations as they

determine advisable and shall, with respect to any parts of the

proposal as to which they have not accepted the recommendations

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(i) notify Congress of those parts of the proposal,

together with the recommendations 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 requested by a

majority of the employee representatives who have made

recommendations, use the services of the Federal Mediation

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 recommendation, or as to which

their recommendations are accepted by the Secretary and the

Director, may be implemented immediately.

(ii) With respect to any parts of the proposal as to which

recommendations have been made but not accepted by the

Secretary and the Director, at any time after 30 calendar

days have elapsed since the initiation of the congressional

notification, consultation, and mediation procedures set

forth in subparagraph (B), if the Secretary determines, in

the Secretary's sole and unreviewable discretion, that

further consultation and mediation is unlikely to produce

agreement, the Secretary may implement any or all of such

parts, including any modifications made in response to the

recommendations as the Secretary determines 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 result of recommendations from

employee representatives, and of the reasons why

implementation is appropriate under this subparagraph.

(D) Continuing collaboration. - If a proposal described in

subparagraph (A) is implemented, the Secretary and the Director

shall -

(i) develop a method for each employee representative to

participate in any further 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 established by the Secretary and the Director

jointly as internal rules of departmental procedure which shall

not be subject to review. Such procedures 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,

representation by individuals designated or from among

individuals nominated by such organization;

(B) in the case of any employees who are not within such a

unit, representation by any appropriate organization which

represents 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 described in subparagraph (B) of paragraph

(1), including procedures by which, if the number of employee

representatives providing recommendations exceeds 5, such

representatives 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

organizations or other representatives involved.

(f) Provisions Relating to Appellate Procedures. -

(1) Sense of congress. - It is the sense of Congress that -

(A) employees of the Department are entitled to fair

treatment in any appeals that they bring in decisions relating

to their employment; and

(B) in prescribing regulations for any such appeals

procedures, the Secretary and the Director of the Office of

Personnel Management -

(i) should ensure that employees of the Department are

afforded the protections of due process; and

(ii) toward that end, should be required to consult with

the Merit Systems Protection Board before issuing any such

regulations.

(2) Requirements. - Any regulations under this section which

relate to any matters within the purview of chapter 77 -

(A) shall be issued only after consultation with the Merit

Systems Protection Board;

(B) shall ensure the availability of procedures 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 designed to further the fair, efficient,

and expeditious resolution of matters involving the employees

of the Department.

(g) Provisions Relating to Labor-Management Relations. - Nothing

in this section shall be construed as conferring authority on the

Secretary of Homeland Security to modify any of the provisions of

section 842 of the Homeland Security 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.

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(Added Pub. L. 107-296, title VIII, Sec. 841(a)(2), Nov. 25, 2002,

116 Stat. 2230.)

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REFERENCES IN TEXT

Section 842 of the Homeland Security Act of 2002, referred to in

subsec. (g), is classified to section 412 of Title 6, Domestic

Security.

Section 1501 of the Homeland Security Act of 2002, referred to in

subsec. (h), is classified to section 541 of Title 6, Domestic

Security.

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EFFECTIVE DATE

Section effective 60 days after Nov. 25, 2002, see section 4 of

Pub. L. 107-296, set out as a note under section 101 of Title 6,

Domestic Security.

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SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in title 6 section 412.

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