[Federal Register Volume 86, Number 163 (Thursday, August 26, 2021)]
[Rules and Regulations]
[Pages 47840-47913]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-17824]
[[Page 47839]]
Vol. 86
Thursday,
No. 163
August 26, 2021
Part III
Department of Homeland Security
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6 CFR Part 158
Cybersecurity Talent Management System; Interim Final Rule
Federal Register / Vol. 86 , No. 163 / Thursday, August 26, 2021 /
Rules and Regulations
[[Page 47840]]
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DEPARTMENT OF HOMELAND SECURITY
6 CFR Part 158
[Docket No. DHS-2020-0042]
RIN 1601-AA84
Cybersecurity Talent Management System
AGENCY: Department of Homeland Security.
ACTION: Interim final rule; request for comments.
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SUMMARY: The U.S. Department of Homeland Security (DHS) is establishing
a new talent management system to address DHS's historical and ongoing
challenges recruiting and retaining individuals with skills necessary
to execute DHS's dynamic cybersecurity mission. The Cybersecurity
Talent Management System (CTMS) is a mission-driven, person-focused,
and market-sensitive approach to talent management. CTMS represents a
shift from traditional practices used to hire, compensate, and develop
Federal civil service employees and is designed to adapt to changes in
cybersecurity work, the cybersecurity talent market, and the
Department's cybersecurity mission. CTMS will modernize and enhance
DHS's capacity to recruit and retain mission-critical cybersecurity
talent. With CTMS, DHS is creating a new type of Federal civil service
position, called a qualified position, and the cadre of those positions
and the individuals appointed to them is called the DHS Cybersecurity
Service (DHS-CS). CTMS will govern talent management for the DHS-CS
through specialized practices for hiring, compensation, and
development. Individuals selected to join the DHS-CS will be provided
with a contemporary public service career experience, which emphasizes
continual learning and contributions to DHS cybersecurity mission
execution. This rulemaking adds regulations to implement and govern
CTMS and the DHS-CS.
DATES: This rule is effective on November 15, 2021. Comments must be
received on or before December 31, 2021.
ADDRESSES: You may submit comments, identified by docket number DHS-
2020-0042, using the Federal rulemaking portal at http://www.regulations.gov. For instructions on submitting comments, see the
``Public Participation and Request for Comments'' portion of the
Supplementary Information section of this document.
FOR FURTHER INFORMATION CONTACT: Technical information: Mr. Travis
Hoadley, Department of Homeland Security, Office of the Chief Human
Capital Officer: telephone 202-357-8700, email [email protected]. Legal
information: Ms. Esa Sferra-Bonistalli, Department of Homeland
Security, Office of the General Counsel: telephone 202-357-8700, email
[email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
A. CTMS Elements
B. Administering CTMS & Managing the DHS-CS
C. New 6 CFR Part 158
D. Costs and Benefits
II. Basis and Purpose
III. Background
A. Authority for a New Cybersecurity Talent Management System
1. Designate & Establish Qualified Positions
2. Appointment
3. Compensation
(a) Comparable Positions
(b) Basic Pay
(i) Rates of Pay and Pay Ranges
(ii) Limitations on Maximum Rates and Pay Caps
(c) Additional Compensation
(i) Consistent With
(ii) The Level Authorized
B. Need for a New Approach to Cybersecurity Talent Management
1. Ever-Evolving Nature of Cybersecurity Work Requires a Focus
on the Individual
2. Outdated, Rigid Position Classification Inadequately
Describes Cybersecurity Work
3. Generic, Inflexible Compensation Limits Ability To Compete
for Cybersecurity Talent
IV. Discussion of the Rule
A. New Approach to Talent Management: Subparts A & B
1. Subpart A--General Provisions
(a) A New Type of Position: Qualified Positions
(b) A New Definition of ``Qualifications''
(c) Other Definitions
(d) Authority & Policy Framework
2. Subpart B--DHS Cybersecurity Service
(a) Mission
(b) Qualified Positions
(c) DHS-CS Employees
(d) DHS-CS Assignments
B. CTMS and DHS-CS Leadership: Subpart C
1. Leaders
2. Principles, Priorities, and Core Values
C. Strategic Talent Planning: Subpart D
1. DHS-CS Cybersecurity Work & CTMS Qualifications
Identification
2. CTMS Talent Market Analysis
3. CTMS Work Valuation & Work and Career Structures
4. Informing CTMS Administration and DHS-CS Management
D. Acquiring Talent: Subpart E
1. CTMS Talent Acquisition System
2. Strategic Recruitment
3. Qualifications-Based Assessment, Selection & Appointment
(a) CTMS Assessment Program
(b) DHS-CS Appointments
E. Compensating Talent: Subpart F
1. CTMS Compensation System
2. DHS-CS Employee Compensation
3. CTMS Salary System
(a) CTMS Salary Range
(b) CTMS Salary Structure
(c) CTMS Local Cybersecurity Talent Market Supplement
(d) CTMS Salary Administration
4. CTMS Recognition
(a) CTMS Recognition Payments
(b) CTMS Recognition Time-Off
(c) CTMS Honorary Recognition
5. Other Special Payments Under CTMS
(a) CTMS Professional Development and Training
(b) CTMS Student Loan Repayments
(c) CTMS Special Work Conditions Payments
(d) CTMS Allowances in Nonforeign Areas
6. Other Compensation Provided in Accordance With OPM
Regulations
7. CTMS Aggregate Compensation Limit
F. Deploying Talent: Subpart G
1. CTMS Deployment Program
2. Designating Qualified Positions
3. Designating and Staffing Assignments
4. Official Worksite
5. Work Scheduling
6. DHS-CS Recordkeeping
7. Details and Opportunities Outside of the DHS-CS
G. Developing Talent: Subpart H
1. CTMS Performance Management Program
2. CTMS Career Development Program
H. Federal Employee Rights and Requirements & Advisory
Appointments: Subparts I & J
1. Subpart I--Employee Rights, Requirements, and Input
2. Subpart J--Advisory Appointments
V. Appendix: Reference Materials
VI. Public Participation and Request for Comments
VII. Statutory and Regulatory Requirements
A. Executive Orders 12866 (Regulatory Planning and Review) and
13563 (Improving Regulation and Regulatory Review)
1. Background and Purpose
2. CTMS Costs: Designing, Establishing, and Administering CTMS
3. CTMS & DHS-CS Costs: Compensating and Retaining DHS-CS
Employees
4. CTMS & DHS-CS Benefits: Enhancing the Cybersecurity of the
Nation
B. Regulatory Flexibility Act
C. Congressional Review Act
D. Unfunded Mandates Reform Act
E. E.O. 13132 (Federalism)
F. E.O. 12988 (Civil Justice Reform)
G. E.O. 13175 (Consultation and Coordination With Indian Tribal
Governments)
H. National Environmental Policy Act
I. National Technology Transfer and Advance Act
J. E.O. 12630 (Governmental Actions and Interference With
Constitutionally Protected Property Rights)
[[Page 47841]]
K. E.O. 13045 (Protection of Children From Environmental Health
Risks and Safety Risks)
L. E.O. 13211 (Actions Concerning Regulations That Significantly
Affect Energy Supply, Distribution, or Use)
M. Paperwork Reduction Act
Table of Abbreviations
APA--Administrative Procedure Act
CFR--Code of Federal Regulations
CISA--Cybersecurity and Infrastructure Security Agency
CRA--Congressional Review Act
CTMB--Cybersecurity Talent Management Board
CTMS--Cybersecurity Talent Management System
DHS--Department of Homeland Security
DHS-CS--DHS Cybersecurity Service
DHS OCIO--DHS Office of the Chief Information Officer
DOD--Department of Defense
DOD CES--Department of Defense's Cybersecurity Excepted Service
DOD DCIPS--Department of Defense's Civilian Intelligence Personnel
System
DOD HQE--DOD Highly Qualified Experts
E.O.--Executive Order
EX--Executive Schedule
FLSA--Fair Labor Standards Act
GAO--Government Accountability Office
GS--General Schedule
HSAC--Homeland Security Advisory Council
IC--Intelligence Community
IC HQE--Intelligence Community Highly Qualified Experts
LCTMS--Local Cybersecurity Talent Market Supplement
OMB--Office of Management and Budget
OPM--Office of Personnel Management
SES--Senior Executive Service
SL/ST--Senior Level/Scientific or Professional
STRL--Scientific and Technology Reinvention Laboratories
Sec. --Section
U.S.C.--United States Code
I. Executive Summary
For more than a decade, the U.S. Department of Homeland Security
(DHS) has encountered challenges recruiting and retaining mission-
critical cybersecurity talent. To address those challenges, DHS has re-
envisioned Federal civilian talent management for 21st-century
cybersecurity work by designing an innovative approach to talent
management: The Cybersecurity Talent Management System (CTMS). DHS is
establishing CTMS under the authority in section 658 of Title 6 of the
United States Code (U.S.C.), which authorizes DHS to create a new
approach to talent management exempt from major portions of existing
laws governing talent management for much of the Federal civil service.
CTMS is mission-driven, person-focused, and market-sensitive, and
it features several interrelated elements, based on leading public and
private sector talent management practices. Importantly, CTMS is also
based on core Federal talent management principles related to upholding
merit, prohibiting certain personnel practices, advancing equity, and
providing equal employment opportunity. CTMS is designed to modernize
and enhance DHS's capacity to recruit and retain individuals with the
skills, called qualifications, necessary to execute the DHS
cybersecurity mission. CTMS is also designed to adapt to changes in
cybersecurity work, the cybersecurity talent market, and the DHS
cybersecurity mission, even as technology, sought-after expertise, and
work arrangements change.
With CTMS, DHS is creating a new type of Federal civil service
position in the excepted service, called a qualified position.
Qualified positions focus on individuals and individuals'
qualifications. The cadre of qualified positions and the individuals
appointed to them is called the DHS Cybersecurity Service (DHS-CS). The
goal of the DHS-CS is to enhance the cybersecurity of the Nation
through the most effective execution of the DHS cybersecurity mission.
DHS will use CTMS to hire, compensate, and develop DHS-CS employees to
reinforce the values of expertise, innovation, and adaptability.
CTMS will also provide DHS-CS employees with a contemporary public
service career experience, which emphasizes continual learning and
contributions to DHS cybersecurity mission execution.
A. CTMS Elements
To recruit and retain DHS-CS employees, CTMS features interrelated
elements that are new processes, systems, and programs that implement
new talent management concepts and definitions. Each CTMS element
represents a shift from the traditional methods and practices Federal
agencies typically use to hire, compensate, and develop civil service
talent. Collectively, the CTMS elements form a complete approach to
talent management and enable new, specialized talent management
practices. CTMS is driven by the DHS cybersecurity mission and informed
by internal data about the state of DHS cybersecurity work and talent;
it is also informed by external data about trends in the field of
cybersecurity and the talent market.
The CTMS elements and their purposes are:
Strategic talent planning process enables CTMS to adapt to
changes in cybersecurity work, the cybersecurity talent market, and the
DHS cybersecurity mission by aggregating and using relevant information
to inform CTMS administration on an ongoing basis. As part of the
strategic talent planning process, DHS:
[cir] Identifies the set of qualifications necessary to perform the
work required to execute the DHS cybersecurity mission.
[cir] conducts analysis of the cybersecurity talent market to
identify and monitor employment trends and leading strategies for
recruiting and retaining cybersecurity talent.
[cir] establishes and administers a work valuation system based on
qualifications and DHS cybersecurity work, which DHS uses instead of
the General Schedule (GS) or other traditional Federal position
classification methods to facilitate systematic talent management and
addresses internal equity.
Talent acquisition system supports qualifications-based
recruitment, assessment, selection, and appointment of DHS-CS
employees.
Compensation system provides sufficiently competitive,
market-sensitive compensation, while encouraging and recognizing DHS-CS
employee contributions, such as exceptional qualifications and mission
impact.
Deployment program guides when DHS uses CTMS to recruit
and retain talent and operationalizes aspects of the work valuation,
talent acquisition, and compensation systems through requirements for
designating qualified positions, designating and staffing assignments,
work scheduling, and recordkeeping.
Performance management program seeks to improve the
effectiveness of DHS-CS employees in executing the cybersecurity
mission by ensuring individual accountability and recognizing their
mission impact.
Career development program ensures the development of the
collective expertise of DHS-CS employees through continual learning,
while guiding the career progression of each DHS-CS employee.
The CTMS elements rely on new talent management concepts and
definitions:
Work and career structures, are constructs, analogous to
General Schedule classes and grades, that DHS establishes under the
CTMS work valuation system and uses instead of classes and grades from
the General Schedule or other traditional Federal position
classification methods. DHS uses work and career structures to support
several elements of CTMS,
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including the compensation system, and DHS determines applicable work
and career structures for a DHS-CS employee as part of selection and
appointment under the CTMS talent acquisition system.
Mission impact is the influence an individual has on the
execution of the DHS cybersecurity mission by applying qualifications
to perform DHS cybersecurity work. DHS determines a DHS-CS employee's
mission impact through mission impact reviews under the CTMS
performance management program. Mission impact is a factor in DHS-CS
employee compensation and development.
Mission-related requirements are characteristics of an
individual's expertise or characteristics of cybersecurity work, or
both, that are associated with successful execution of the DHS
cybersecurity mission. They are determined by officials with
appropriate decision-making authority and are a factor in DHS-CS
employee compensation, assignment matches, and development.
Strategic talent priorities are priorities for CTMS and
the DHS-CS set by the Secretary or the Secretary's designee. Strategic
talent priorities are used in administering CTMS and managing the DHS-
CS.
B. Administering CTMS & Managing the DHS-CS
The Secretary, or the Secretary's designee, leads CTMS and the DHS-
CS with assistance from the Cybersecurity Talent Management Board
(CTMB). The CTMB comprises DHS officials representing organizations
involved in executing the DHS cybersecurity mission and DHS officials
responsible for developing and administering talent management policy.
Working together, these officials ensure the most efficient operation
of CTMS and the most effective management of the DHS-CS. The Secretary,
or the Secretary's designee, and the CTMB administer CTMS and manage
the DHS-CS.
The dynamic DHS cybersecurity mission drives CTMS. On an ongoing
basis, DHS identifies the functions that execute the DHS cybersecurity
mission, the cybersecurity work required by those functions, and the
set of qualifications necessary to perform that work. The work
identified is called DHS-CS work, and the set of qualifications
identified are called CTMS qualifications. Under CTMS, qualifications
are individuals' cybersecurity skills, which encompass the full array
of work-related characteristics and qualities that distinguish talent.
Qualifications are the core of CTMS and its elements, and on an
ongoing basis, DHS updates the set of CTMS qualifications to ensure
they continue to reflect the collective cybersecurity expertise DHS
requires. DHS establishes work and career structures based on CTMS
qualifications, and DHS creates qualified positions based on DHS-CS
employees' CTMS qualifications. DHS-CS employees execute the DHS
cybersecurity mission by applying their CTMS qualifications to perform
DHS-CS cybersecurity work. In administering CTMS to recruit and retain
DHS-CS employees, DHS emphasizes individuals' CTMS qualifications and
their mission impact.
DHS uses CTMS, instead of another Federal personnel system, when a
DHS organization requires talent with CTMS qualifications and DHS
determines that the recruitment and retention of such talent would be
enhanced by the specialized practices of CTMS.
All individuals interested in serving in the DHS-CS must apply, and
DHS proactively recruits individuals at all career stages, from those
just beginning a career in cybersecurity to those with years of proven
experience working as a cybersecurity technical expert or
organizational leader. Recruitment includes proactively communicating
with prospective applicants about DHS's unique cybersecurity mission
and available public service career opportunities in the DHS-CS.
DHS assesses applicants using standardized instruments and
procedures intended to determine the applicants' CTMS qualifications.
DHS selects an individual based on the individual's CTMS
qualifications.
DHS may appoint a selected individual to a renewable appointment or
continuing appointment. A renewable appointment is time-limited, may be
renewed multiple times, and may be used for project-based work or other
similar purposes. A continuing appointment is not time-limited. The
DHS-CS can also include political appointees, called advisory
appointees. Regardless of appointment type, new DHS-CS employees are
matched with initial assignments based on mission needs and their CTMS
qualifications upon appointment.
Compensation for DHS-CS employees includes salaries and additional
compensation. DHS provides such compensation in alignment with a CTMS
compensation strategy aimed at ensuring sufficiently competitive
compensation to recruit and retain the cybersecurity expertise DHS
requires. Under CTMS, compensation is based primarily on CTMS
qualifications, and DHS has necessary flexibility to adjust aspects of
compensation based on market and mission demands.
DHS provides salaries for DHS-CS employees under a market-sensitive
salary structure bounded by an overall salary range. This salary range
is comprised of a standard range and an extended range for use in
limited circumstances. A DHS-CS employee's salary may include a local
cybersecurity talent market supplement, analogous to a locality-based
comparability payment, to ensure a competitive salary in certain
geographic areas.
DHS provides additional compensation for DHS-CS employees mainly in
the form of recognition, which includes salary increases called
recognition adjustments, cash bonuses called recognition payments, paid
time-off called recognition time-off, and honorary awards called
honorary recognition. Such recognition is based primarily on DHS-CS
employees' mission impact.
CTMS additional compensation also includes payments for special
working conditions, which DHS can use to compensate a DHS-CS employee
for special working conditions that are determined to be insufficiently
accounted for in the employee's salary. For example, such conditions or
circumstances include performing certain work involving unusual
physical or mental hardship, at unexpected times, or for an uncommon
duration of time. Other types of additional compensation available to
DHS-CS employees are similar to or the same as existing offerings for
many Federal employees: Professional development and training, student
loan repayments, allowances in nonforeign areas, as well as traditional
Federal employee benefits like holidays, leave, retirement, health
benefits, and insurance programs.
Throughout DHS-CS employees' service, DHS considers increasing
employees' compensation based primarily on their mission impact.
Compensation increases occur mainly through CTMS recognition as either
recognition adjustments or recognition payments. CTMS does not feature
automatic salary increases or payments; moreover, longevity in position
or prior Federal government service are not factors in CTMS
compensation.
Each DHS-CS employee's salary is subject to salary limitations, and
each DHS-CS employee's aggregate compensation, composed of the
employee's salary and certain types of additional compensation, is
subject to an aggregate compensation limit. These salary limitations
and the aggregate compensation limit implement statutory
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requirements from the authority for CTMS in 6 U.S.C. 658.
Career progression in the DHS-CS is based on enhancement of CTMS
qualifications and salary progression resulting from recognition
adjustments. DHS guides a DHS-CS employee's career and ensures
development of the collective expertise of DHS-CS employees through
continual learning, which may include a range of recommended and
required learning activities. Continual learning and enhancement of
CTMS qualifications are integral to a DHS-CS employee's service in the
DHS-CS. New assignment opportunities may be an important part of DHS-CS
employees' continual learning and enhancement of CTMS qualifications.
Through such assignments, DHS-CS employees are able to learn and
perform different types of DHS-CS cybersecurity work and customize
contemporary career experiences that maximize both their qualifications
and their impact on the DHS cybersecurity mission.
C. New 6 CFR Part 158
This rulemaking adds new part 158 to Title 6 of the Code of Federal
Regulations (CFR) to implement and govern CTMS and the DHS-CS. New part
158 contains several subparts setting forth the interrelated elements
of CTMS that function together as a complete, and innovative, approach
to talent management.
D. Costs and Benefits
From FY 2016 through FY 2020, DHS received approximately $49
million of appropriated funding to design and establish CTMS and the
resulting DHS-CS. The major costs of CTMS and the DHS-CS are: (1) The
cost of talent management infrastructure necessary for the Office of
the Chief Human Capital Officer (OCHCO) to design, establish, and
prepare to administer CTMS; and (2) the cost of compensating DHS-CS
employees hired by DHS organizations using CTMS.
In FY 2021, OCHCO received approximately $13 million of
appropriated funding to both finalize the design of CTMS and to
establish CTMS. For FY 2022, DHS requested that funding be increased to
approximately $16 million both to launch and administer CTMS and to
support the management of an expanding population of DHS-CS employees.
The primary benefit of this rule is to ensure the most effective
execution of the DHS cybersecurity mission by establishing CTMS to
enhance DHS's capacity to recruit and retain cybersecurity talent in
the new DHS-CS.
This rulemaking does not directly regulate the public.
II. Basis and Purpose
On December 18, 2014, Congress added a new section to the Homeland
Security Act of 2002 entitled ``Cybersecurity Recruitment and
Retention.'' This new section is codified at 6 U.S.C. 658 and grants
the Secretary broad authority and discretion to create a new personnel
or talent management system for DHS's cybersecurity workforce. The
exercise of this authority and discretion is exempt from major portions
of existing laws governing talent management for much of the Federal
civil service.\1\ This exemption allows DHS to re-envision talent
management for 21st-century cybersecurity work.
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\1\ 6 U.S.C. 658(b)(1)(B).
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This rule implements 6 U.S.C. 658 and establishes a new talent
management system designed based on DHS's dynamic cybersecurity
mission. Use of the new system addresses DHS's historical and ongoing
challenges recruiting and retaining mission-critical cybersecurity
talent.
To implement the authority in 6 U.S.C. 658, Congress requires the
Secretary ``shall prescribe regulations'' and to do so in coordination
with the Director of the Office of Personnel Management (OPM).\2\ This
rulemaking fulfills the requirement to prescribe regulations. To
fulfill the requirement to coordinate with the Director of OPM, DHS
engaged with OPM experts for assistance in understanding the talent
management concepts invoked by the language of 6 U.S.C. 658 and to
obtain feedback on DHS's design for the new talent management system.
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\2\ 6 U.S.C. 658(b)(6).
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DHS is promulgating this rule as an interim final rule because it
is a matter relating to agency management or personnel that is exempt
from the rulemaking requirements of the Administrative Procedure Act
(APA). Rulemaking requirements of the APA include issuing a notice of
proposed rulemaking, providing an opportunity for public comment, and
an effective date not less than 30 days after publication of the
rule.\3\ These requirements, however, do not apply to ``a matter
relating to agency management or personnel or to public property,
loans, grants, benefits, or contracts.'' \4\ The Attorney General's
Manual on the Administrative Procedure Act describes this exemption as
one of two ``broad exceptions'' to APA rulemaking requirements,\5\ and
further characterizes the agency management or exemption as ``self-
explanatory.'' \6\ Similar to the Attorney General's Manual
characterization, Federal courts have interpreted the agency management
exemption as applying to traditional personnel matters, such as a new
personnel system, personnel manuals, and personnel policies.\7\
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\3\ 5 U.S.C. 553(b)-(d).
\4\ 5 U.S.C. 553(a)(2).
\5\ Attorney General's Manual on the Administrative Procedure
Act, 26. The other broad exemption in the APA, as amended, is for
``any military or foreign affairs function of the United States''
under 5 U.S.C. 553(a)(1).
\6\ Id. at 27.
\7\ See, e.g., Brodowy v. U.S., 482 F.3d 1370, 1375-76 (Fed.
Cir. 2007) (finding an agency's new personnel management system to
be a matter relating to agency management or personnel and exempt
from the APA's procedural requirements); Hamlet v. U.S., 63 F.3d
1097, 1105 (Fed. Cir. 1995) (holding that an agency personnel manual
governing all phases of personnel management relates to matters of
agency personnel, and its promulgation was exempt from the APA's
procedural requirements); Stewart v. Smith, 673 F.2d 485, 496-500
(D.C. Cir. 1982) (holding that an agency's hiring policy falls
within the APA exception for agency management or personnel).
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Although this rulemaking is exempt from the rulemaking requirements
of the APA, DHS is seeking public comments on the innovative talent
management system. Interested persons are invited to participate in
this rulemaking by submitting written comments as described in VI.
Public Participation and Request for Comments of this document.
III. Background
Cybersecurity is a matter of homeland security and one of the core
missions of DHS. For more than a decade, DHS has encountered challenges
recruiting and retaining mission-critical cybersecurity talent. As
cybersecurity threats facing the Nation have grown in volume and
sophistication, DHS has experienced spikes in attrition and
longstanding vacancies in some cybersecurity positions, as well as
shortages of certain critical and emerging cybersecurity skills.
In response to DHS's historical and ongoing challenges recruiting
and retaining cybersecurity talent, Congress granted the Secretary the
authority in 6 U.S.C. 658 to ensure DHS improves its ability to recruit
and retain mission-critical cybersecurity talent. Legislative history
indicates that Congress granted the authority in 6 U.S.C. 658 in
response to a report by the Secretary's Homeland Security Advisory
Council (HSAC) recommending DHS receive additional talent management
flexibilities similar
[[Page 47844]]
to those used by the National Security Agency.\8\ The HSAC report
linked DHS's recruitment and retention challenges to a global shortage
of cybersecurity expertise and fierce competition among Federal
agencies and the private sector for cybersecurity skills.\9\
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\8\ S. Rep. 113-207, Report of the Committee on Homeland
Security and Governmental Affairs, U.S. Senate, to accompany S.
2354, ``To Improve Cybersecurity Recruitment and Retention,'' (July
14, 2014), 2-3 (``The [Homeland Security Advisory] Council also made
a recommendation to Congress: `Congress should grant the Department
[of Homeland Security] human capital flexibilities in making salary,
hiring, promotion and separation decisions identical to those used
by the National Security Agency for hiring and managing its
cybersecurity workforce and other technical experts.' This bill
seeks to do just that: It gives the Secretary of Homeland Security
similar recruitment and retention authorities for cybersecurity
professional as currently possessed by the Secretary of Defense'').
Note that S. 2354 is a previous bill, the language of which is now
codified at 6 U.S.C. 658.
\9\ Homeland Security Advisory Council, U.S. Department of
Homeland Security, CyberSkills Task Force Report (Fall 2012).
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The language codified at 6 U.S.C. 658 mirrors the language in 10
U.S.C. 1601-1603, enacted in 1996 for the Department of Defense (DOD),
that authorizes DOD's Defense Civilian Intelligence Personnel System
(DOD DCIPS).\10\ In addition, the language codified at 6 U.S.C. 658 is
similar to a separate DOD authority, enacted a year after Sec. 658,
and under which DOD has established the DOD Cybersecurity Excepted
Service (DOD CES) personnel system for its United States Cyber Command
workforce.\11\
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\10\ National Defense Authorization Act for Fiscal Year 1997
Public Law 104-201, Sec. 1632 (Sept. 23, 1996), codified at 10
U.S.C. 1601-1614.
\11\ National Defense Authorization Act for Fiscal Year 2016.
Public Law 114-92, Sec. 1107 (Nov. 25, 2015), codified at 10 U.S.C.
1599f.
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Once granted the authority to create a new cybersecurity talent
management system free from existing requirements and practices
governing Federal talent management, DHS formed a specialized team in
early 2016 to design a new cybersecurity talent management system
capable of addressing DHS's recruitment and retention challenges. Based
on the authority in 6 U.S.C. 658 and DHS's understanding of both the
cybersecurity talent landscape and existing Federal talent management
practices, DHS concluded it could--and it must--re-envision talent
management for 21st-century cybersecurity work. As outlined in required
reports to Congress \12\ about DHS's plan for and progress toward
execution of the authority granted in 6 U.S.C. 658, DHS is using this
authority to create an innovative, 21st-century talent management
system with solutions for its cybersecurity workforce recruitment and
retention challenges.\13\ This rule establishes the new talent
management system, which is based on leading public and private sector
talent management practices and driven by the DHS cybersecurity
mission.
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\12\ See 6 U.S.C. 658(b)(4) and 658(c).
\13\ U.S. Department of Homeland Security, Plan for Execution of
Authorities: Fiscal Year 2015 Report to Congress, (May 3, 2016);
U.S. Department of Homeland Security, Annual Report: Usage of
Cybersecurity Human Capital Authorities Granted by 6 United States
Code Sec. 147, (May 3, 2016); U.S. Department of Homeland Security,
Annual Report: Usage of Cybersecurity Human Capital Authorities
Granted by 6 United States Code Sec. 147, (Apr.4, 2017); U.S.
Department of Homeland Security, Comprehensive Cybersecurity
Workforce Update: FY2018-2019 (July 2020).
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A. Authority for a New Cybersecurity Talent Management System
The authority in 6 U.S.C. 658 allows DHS to create a new talent
management system exempt from many existing laws governing Federal
civilian talent management. Specifically, the Secretary may designate
and establish ``qualified positions'' in the excepted service, appoint
individuals to those positions, and compensate appointed individuals.
See 6 U.S.C. 658(b)(1)(A). The Secretary may do this ``without regard
to the provisions of any other law relating to the appointment, number,
classification, or compensation of employees.'' See 6 U.S.C.
658(b)(1)(B). The ``without regard to'' language supersedes all other
laws governing appointment, number, classification, or compensation of
employees.\14\
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\14\ See e.g. Cisneros v. Alphine Ridge Group, 508 U.S. 10
(1993) (construing the use of a ``notwithstanding'' clause, which is
similar to the ``without regard to'' clause in 5 U.S.C.
658(b)(1)(B), as superseding all other laws).
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The language of 6 U.S.C. 658 uses terms that invoke fundamental
talent management concepts. Importantly, the exemption from
classification means that DHS can choose how to describe cybersecurity
work, including by establishing new constructs to categorize work and
new ways of defining positions performing such work, and relatedly, DHS
can choose how to value cybersecurity work and positions, including
through new compensation structures and practices. DHS has interpreted
the authority in 6 U.S.C. 658, as necessary, to fulfill the
congressional intent in the legislative history: That DHS address its
cybersecurity workforce recruitment and retention challenges and
improve its capacity to compete for top cybersecurity talent by
exercising greater discretion in hiring and compensating cybersecurity
talent.\15\
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\15\ See S. Rep. 113-207, Report of the Committee on Homeland
Security and Governmental Affairs, U.S. Senate, to accompany S.
2354, ``To Improve Cybersecurity Recruitment and Retention,'' (July
14, 2014), 1 (stating that the language is now codified at 6 U.S.C.
658, ``would enable DHS to better compete for cybersecurity talent
by giving the Secretary of Homeland Security greater discretion than
currently possessed when hiring and setting the pay and benefits of
DHS cybersecurity employees.''). Also see remarks in the
Congressional Record indicating that 6 U.S.C. 658 grants the
Secretary talent management flexibilities to better recruit and
retain top cybersecurity talent with a faster and more flexible
hiring process and more competitive compensation. 160 Cong. Rec.
H8945, 8950 (Ms. Norton: ``An amendment introduced by Senator Carper
also would add provisions allowing the Department of Homeland
Security to recruit and retain cyber professionals by granting
authority to hire qualified experts on an expedited basis and to pay
them competitive salaries, wages, and incentives''); 160 Cong. Rec.
H8945, 8951 (Ms. Clarke: ``The cyber workforce language included in
S. 1691 generally does two important things. First, it grants
special hiring authority to DHS to bring on board topnotch cyber
recruits. The Department desperately needs a more flexible hiring
process with incentives to secure talent in today's highly
competitive cyber skills market. Second, it requires the Secretary
of the Department to assess its cyber workforce'').
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Although DHS has authority to create a new talent management system
free from existing requirements in other laws governing appointment,
number, classification, and compensation of Federal employees, Congress
provided a few requirements and parameters for exercising that
authority. The following discussion in III.A.1 through III.A.3 of this
document explains the scope of the Secretary's authority to create a
new talent management system.
1. Designate & Establish Qualified Positions
Under 6 U.S.C. 658, DHS has authority to both designate and
establish qualified positions. Section 658(a)(5) defines ``qualified
position'' as ``a position, designated by the Secretary for the purpose
of this section, in which the incumbent performs, manages, or
supervises functions that execute the responsibilities of the
Department relating to cybersecurity.'' Section 658(b)(1)(A)(i) gives
authority to ``establish'' qualified positions and describes qualified
positions as positions in the excepted service that the Secretary
determines necessary to carry out the responsibilities of the
Department relating to cybersecurity. The authority to designate
qualified positions includes determining the purpose and use of such
qualified positions, as the Secretary determines necessary, for
executing DHS's cybersecurity responsibilities.\16\ The authority to
establish qualified positions
[[Page 47845]]
is authority to create qualified positions in the excepted service to
carry out DHS's cybersecurity responsibilities.\17\
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\16\ ``Designate'' means ``to indicate and set apart for a
specific purpose, office, or duty,'' ``to point out the location
of,'' ``to distinguish as to class,'' or ``specify, stipulate.''
Merriam-Webster, https://www.merriam-webster.com/dictionary/designate (last visited May 25, 2021).
\17\ Legislative history indicates that the authority to
``establish'' positions means to ``create new positions.'' In a
report accompanying S. 2354, the language of which is now codified
at 6 U.S.C. 658, Congress states that ``the Secretary of Defense may
create new positions for cyber personnel'' and references DOD DCIPS
authority at 10 U.S.C. 1601-1603. S. Rep. 113-207, Report of the
Committee on Homeland Security and Governmental Affairs, U.S.
Senate, to accompany S. 2354, ``To Improve Cybersecurity Recruitment
and Retention,'' (July 14, 2014), 2. In 10 U.S.C. 1601, Congress
grants the Secretary of Defense authority to ``establish, as
positions in the excepted service, such defense intelligence
positions in the Department of Defense as the Secretary determines
necessary to carry out the intelligence functions of the
Department.''
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The authority to designate and establish qualified positions
applies without regard to any other provisions of law relating to the
number or classification of employees.\18\ In the U.S. Code, provisions
of law relating to the number of employees may limit the number of
positions, or types of positions, or limit the number of employees that
may be hired into such positions.\19\ Thus, DHS is not limited in the
number of qualified positions the Secretary may designate and
establish, except by funding constraints and requirements in
appropriations for DHS.
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\18\ 6 U.S.C. 658(b)(1)(B). The authority to designate and
establish qualified positions also applies without regard to any
other provisions of law relating to appointment or compensation of
employees.
\19\ See e.g., 5 U.S.C. 3131(c) (``The Office of Personnel
Management, in consultation with the Office of Management and
Budget, shall review the request of each agency and shall authorize
. . . a specific number of Senior Executive Service positions for
each agency''); see also the Federal Employees Pay Act of 1945, Sec.
607 (controlling the number of employees and establishing personnel
ceilings within executive branch agencies), repealed Public Law 81-
784 (Sept. 1950).
---------------------------------------------------------------------------
Under the exemption relating to classification of employees,\20\
DHS is exempt from the General Schedule (GS) position classification
system as well as other work valuation systems relying on traditional
position classification concepts and methods. ``Classification''
generally is a systematic process of job or work valuation used to
describe and value jobs or work and individuals within an
organization.\21\ In the Federal civil service context, classification
most often refers to the GS position classification system, which is
the job evaluation system codified at 5 U.S.C. Chapter 51. Chapter 51
provides a definition of the term ``position'' that means ``the work,
consisting of the duties and responsibilities, assignable to an
employee.'' \22\ Under the GS position classification system, positions
are grouped into classes \23\ and grades \24\ based on duties,
responsibilities, and qualification requirements.\25\ Traditional
Federal position classification systems based on Chapter 51, including
the GS, provide job structures, such as classes and grades, that
meaningfully group positions to facilitate systematic management of
Federal civilian employees and address internal equity. With the GS or
other similar position classification systems, those job structures
influence many aspects of talent management, especially compensation,
for positions under those systems and employees in those positions.\26\
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\20\ 6 U.S.C. 658(b)(1)(B).
\21\ See Robert L. Heneman, Ph.D., Work Evaluation: Strategic
Issues and Alternative Methods, prepared for the U.S. Office of
Personnel Management, FR-00-20 (July 2000, Revised Feb. 2002), 2-3
and 11.
\22\ 5 U.S.C. 5102(3).
\23\ A ``class'' includes all positions ``sufficiently similar''
regarding ``kind or subject-matter of work; level of difficulty and
responsibility; and the qualifications requirements of the work; to
warrant similar treatment in personnel and pay administration.'' 5
U.S.C. 5102(a)(4).
\24\ A ``grade'' includes all classes of position that,
``although different with respect to the kind of subject-matter of
work, are sufficiently equivalent as to--level of difficulty and
responsibility, and level of qualification requirements of the work;
to warrant their inclusion within one range of rates of basic pay in
the General Schedule.'' 5 U.S.C. 5102(a)(5).
\25\ 5 U.S.C. 5101(2) (requiring grouping of positions into
classes and grades based on duties, responsibilities, and
qualification requirements).
\26\ U.S. Government Accountability Office, Human Capital: OPM
Needs to Improve the Design, Management, and Oversight of the
Federal Classification System, GAO-14-677 (July 2014), 4-6.
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Under the exemption relating to classification of employees,\27\
DHS is exempt from the definition of ``position'' under the GS position
classification system and other job or work valuation systems, and how
the concept of ``position'' is used under those systems. Section 658
defines and describes qualified positions as positions designated and
established by the Secretary as the Secretary determines necessary, and
both the definition and description of qualified positions use the
general, stand-alone term ``position.'' \28\ In the U.S. Code, that
term does not have a universal meaning or a specific meaning in the
excepted service; instead the U.S. Code contains multiple definitions
of the term ``position'' for specific purposes.\29\
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\27\ 6 U.S.C. 658(b)(1)(B).
\28\ 6 U.S.C. 658(a)(5) and (b)(1)(A)(i).
\29\ Title 5 of the U.S. Code alone contains multiple
definitions of the term position for purposes of specific Chapters,
sections, or subsections. The multiple definitions in Title 5
describe ``position'' as duties and responsibilities of a position,
types of position, and specific positions occupiable by individuals.
See e.g., 5 U.S.C. 5102(a)(3) (defining ``position'' for purposes of
the General Schedule to mean ``the work, consisting of duties and
responsibilities, assignable to an employee''); 5 U.S.C. 5304(h)(1)
(defining ``position'' for purposes of a particular provision
regarding locality-based comparability payments as types of
positions, including administrative law judges, contract appeals
board members, and SES positions); 5 U.S.C. 5531(2) (defining
positions for purposes of applying dual pay provisions as a specific
position occupiable by an individual, such as a civilian office or
civilian positions, including a temporary, part-time, or
intermittent position, that is appointive or elective in the
legislative, executive, or judicial branch).
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The authority to designate and establish qualified positions and
the exemptions from existing laws provides the Secretary broad
discretion to determine how to create and use qualified positions for
purposes of carrying out the responsibilities of DHS relating to
cybersecurity. In particular, the exemption relating to classification
of employees means DHS may determine the use of qualified positions and
create such positions as new positions in the excepted service without
regard to existing definitions of positions, or how the concept of
position is currently used, in management of Federal employees.
As discussed subsequently in III.B of this document, main factors
contributing to DHS's challenges recruiting and retaining cybersecurity
talent are the focus of existing Federal talent management practices on
narrowly-defined and mostly-static jobs or positions instead of
individuals and their skills, as well as the inability of current
Federal classification methods to effectively describe and account for
individuals' cybersecurity skills. Therefore, as discussed further in
IV.A.1 of this document, DHS is using the Secretary's broad authority
and discretion for designating and establishing qualified positions,
and the exemptions from existing laws, to create a new type of Federal
civil service position based on individuals and their skills necessary
for executing the DHS cybersecurity mission. To do this, DHS is
designing CTMS with new processes, systems, and programs to create and
use qualified positions based on the DHS cybersecurity mission and
individuals' skills necessary to execute that mission. Those processes,
systems, and programs are called CTMS elements and include a new work
valuation system.
2. Appointment
Under 6 U.S.C. 658, DHS has authority to create new hiring
processes for qualified positions without regard to existing
requirements and processes for hiring Federal civilian employees.
Section 658(b)(1)(A)(ii) gives the Secretary authority to appoint an
individual to a qualified position and, under 6 U.S.C. 658(b)(1)(B),
this
[[Page 47846]]
appointment authority applies without regard to the provisions of any
other law relating to appointment, number, or classification of
employees.\30\
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\30\ The authority to appoint an individual to a qualified
position also applies without regard to any other provisions of law
relating to compensation of employees. 6 U.S.C. 658(b)(1)(B).
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The exemption relating to appointment of employees means DHS may
appoint individuals to qualified positions without regard to the Title
5 hiring requirements and processes, including procedures for accepting
and reviewing applications, making selections, and appointing
individuals to positions.\31\ Also, the exemption regarding number of
employees means there is no statutory limit on the number of qualified
positions or number of appointments to such positions. As discussed
previously, provisions of the U.S. Code relating to the number of
employees may limit the number of positions, or types of positions, or
limit the number of employees that may be hired into such
positions.\32\ Although DHS is not limited in the number of
appointments to qualified positions, funding constraints and
requirements in DHS appropriations still apply.
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\31\ See e.g., 5 U.S.C. Chapter 33, Subchapter I.
\32\ See e.g., 5 U.S.C. 3131(c) (``The Office of Personnel
Management, in consultation with the Office of Management and
Budget, shall review the request of each agency and shall authorize
. . . a specific number of Senior Executive Service positions for
each agency''); see also the Federal Employees Pay Act of 1945, Sec.
607 (controlling the number of employees and establishing personnel
ceilings within executive branch agencies), repealed Public Law 81-
784 (Sept. 1950).
---------------------------------------------------------------------------
The exemption relating to classification of employees, discussed
previously, means DHS may also appoint individuals to qualified
positions exempt from the GS position classification system and other
work valuation systems relying on traditional position classification
concepts and methods. In the context of appointments, Chapter 51 and
implementing regulations and policy dictate elements of the hiring
process for GS positions. For example, OPM classification and
qualification standards, policies, and processes \33\ establish
procedures used for defining, identifying, and evaluating jobs and
applicants in order to select individuals for appointment to a GS
position.
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\33\ See U.S. Office of Personnel Management website,
``Classification & Qualifications,'' https://www.opm.gov/policy-data-oversight/classification-qualifications/ (last visited May 25,
2021).
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As discussed subsequently in III.B of this document, main factors
contributing to DHS's challenges recruiting and retaining cybersecurity
talent are the lack of focus of existing Federal talent management
practices on individuals and their skills, as well as fierce
competition for those individuals and their skills. Therefore, as
discussed further in IV.C of this document, DHS is using the
Secretary's appointment authority, and the exemptions from existing
laws, to create new hiring processes for qualified positions to recruit
and hire individuals with mission-critical skills. To do this, DHS
designed strategic recruitment processes based on leading private
sector practices and a new skills-based assessment program under a new
DHS-specific talent acquisition system.
3. Compensation
Under 6 U.S.C. 658(b), DHS has authority to create a new
administrative compensation system covering salaries and other types of
compensation. Section 658(b)(1)(A)(iii) gives authority to set
compensation for individuals in qualified positions. This Sec. 658
compensation authority includes specific salary authority in Sec.
658(b)(2)(A) to fix the rates of basic pay for qualified positions
subject to limitations on maximum rates of pay. The Sec. 658
compensation authority also includes specific additional compensation
authority in Sec. 658(b)(3)(A) to provide compensation in addition to
basic pay, including benefits, incentives, and allowances.
The Sec. 658 compensation authority applies without regard to any
other provisions of law relating to the classification or compensation
of employees.\34\ As explained previously, the exemption relating to
classification of employees exempts the authority in 6 U.S.C. 658 from
the GS position classification system and other Federal work valuation
systems. In the context of compensation, the GS position classification
system describes and groups Federal civil service positions to assign
rates of basic pay under the related GS pay system in 5 U.S.C. Chapter
53. Thus, the Sec. 658 compensation authority is exempt from the GS
pay system as well as the GS position classification system under both
the exemption relating to classification of employees and the exemption
relating to compensation of employees.
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\34\ 6 U.S.C. 658(b)(1)(B). The Sec. 658 compensation authority
also applies without regard to any other provisions of law relating
to appointment or number of employees. Id.
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In addition to laws establishing the GS pay system, the exemption
relating to compensation of employees exempts the Sec. 658
compensation authority from other provisions of law relating to
compensation, which include: Provisions in 5 U.S.C. Chapter 53
establishing and governing other pay systems; premium pay provisions in
5 U.S.C. Chapter 55 and the minimum wage and overtime pay provisions of
the Fair Labor Standards Act (FLSA); provisions in Title 5 regarding
monetary awards, incentives, and certain differentials; the limitation
on annual aggregate compensation in 5 U.S.C. 5307; and provisions in 5
U.S.C. Chapter 61 governing work schedules, which impacts compensation,
especially salary and leave.
The Sec. 658 compensation authority does provide parameters for
exercising that authority specific to providing basic pay and providing
additional compensation, and those parameters depend on identifying
positions that are ``comparable'' to qualified positions designated by
the Secretary. For Sec. 658 basic pay, the Secretary must identify
comparable positions in DOD and their associated rates of pay, and then
fix rates of basic pay for individuals in qualified positions ``in
relation to'' those DOD rates of pay.\35\ For Sec. 658 additional
compensation, if the Secretary provides additional compensation, the
Secretary must identify comparable positions authorized by Title 5, and
then provide only additional compensation that is ``consistent with,
and not in excess of the level authorized for,'' those Title 5
positions.\36\
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\35\ 6 U.S.C. 658(b)(2)(A).
\36\ 6 U.S.C. 658(b)(3)(A).
---------------------------------------------------------------------------
The language of, and direction in, the Sec. 658 basic pay
authority and the Sec. 658 additional compensation authority is
ambiguous, including the implicit initial requirement to identify
``comparable positions.'' Statutory language for Federal compensation
systems generally is not straight-forward nor unambiguous, and the
responsibility of resolving ambiguities in the Federal compensation
system context has been characterized as inherently complex.\37\
[[Page 47847]]
The compensation authority language in 6 U.S.C. 658 is no exception. To
implement the Sec. 658 compensation authority, DHS has had to
interpret the ambiguous statutory language of the basic pay authority
and the additional compensation authority, as discussed in the
following three sections of this document: III.A.3.(a) Comparable
Positions, III.A.3.(b) Basic Pay, and III.A.3.(c) Additional
Compensation.
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\37\ In 2012, the Comptroller General noted ``the extraordinary
complexity of the [F]ederal pay systems and the difficulties we have
encountered in attempting to resolve ambiguities arising from pay
laws enacted at different times over nearly 70 years ago.''
Comptroller General Opinion, Pay for Consultants and Scientists
Appointed under Title 42, B-323357 (July 12, 2012) (determining that
the pay cap in 5 U.S.C. 5373 is inapplicable to pay for consultants
and scientists appointed under 42 U.S.C. 209(f) or (g), but that
such pay is limited by an appropriations cap), 1. The Comptroller
General referenced a D.C. Circuit case that also noted the inherent
complexity in resolving ambiguities in the Federal compensation
context. Id. That D.C. Circuit case explained that in 1983 there
were six discrete Federal civilian pay systems and ``depending on
the degree of disaggregation, over forty other, separate pay
systems. These pay systems vary considerably in the number of
employees covered and method for determining pay.'' International
Organization of Masters, Mates & Pilots v. Brown, 698 F.2d 536, 539
(D.C. Cir. 1983), 698 F.2d 536, 538-39 (holding that the pay cap in
5 U.S.C. 5373 applies to government mariners whose pay is set in
accordance with prevailing rates and practices in the maritime
industry). The Comptroller General also commented: ``The statutory
scheme has only become more complex since 1983.'' Comptroller
General Opinion, B-323357 at 1.
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(a) Comparable Positions
Section 658 does not define or identify comparable positions in
DOD, comparable positions authorized by Title 5, nor what makes such
positions ``comparable'' to qualified positions. As mentioned
previously, and discussed in IV.A of this document, DHS is using the
Secretary's broad authority and discretion for designating and
establishing qualified positions to create qualified positions as a new
type of Federal civil service position based on the DHS cybersecurity
mission and individuals' skills necessary to execute that mission. As
such, there are no existing positions in DOD nor existing positions
authorized by Title 5 that are obvious ``comparable positions'' to this
new type of position for the purposes of implementing the Sec. 658
basic pay authority and the Sec. 658 additional compensation
authority. Consequently, DHS must determine which positions in DOD, and
which positions authorized by Title 5, are comparable to this new type
of Federal civil service position.
DHS interprets ``comparable positions'' to mean positions that have
characteristics in common with a qualified position. A dictionary
definition of the term ``comparable'' can mean ``similar'' or ``capable
of being compared;'' however, only the ``similar'' definition provides
guidance.\38\ Most--if not all--Federal civil service positions are
``comparable'' in the sense that they are capable of being be compared
to one another based on some criteria or using a consistent metric. The
ability or a process to compare positions does not result in
identifying positions in DOD and positions authorized by Title 5 that
are ``comparable'' for the purpose of implementing the Sec. 658 basic
pay authority and the Sec. 658 additional compensation authority.\39\
A dictionary definition of the term ``similar'' is ``alike in substance
or essentials'' or ``having characteristics in common.'' \40\ Thus,
positions that are ``comparable'' are ones that are alike in substance
or essentials or have characteristics in common.
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\38\ United States v. Cinemark USA Inc., 348 F.3d 569 (6th Cir.
2003) (determining that ``comparable'' has two possible meanings
under a dictionary definition: (1) ``similar,'' and (2) ``capable of
being compared and concluding that the term ``comparable'' had to
mean ``similar'' in order to give substantive meaning to that term).
\39\ Id. at 573 (explaining: ``While the word `comparable' can
mean `capable of being compared,' such an interpretation would give
the word no substantive content in this context. The other--
obviously intended--meaning of `comparable' is `similar.' Thus, in
ordinary parlance, if the prices at one store or restaurant are ten
times those of a competitor, one would not say that the prices are
`comparable,' even though they can obviously be compared'').
\40\ Merriam-Webster, https://www.merriam-webster.com/dictionary/similar (last visited May 25, 2021).
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The main characteristics of a qualified position can be described
as a link to the DHS cybersecurity mission and an emphasis on an
individual's skills necessary to execute that mission. Thus,
``comparable positions'' in DOD and authorized by Title 5, are those
that also have (1) a link to cybersecurity responsibilities of an
agency, and (2) an emphasis on an individual's skills necessary to
perform cybersecurity work. Some positions in DOD and some positions
authorized by Title 5 have these characteristics in common with
qualified positions, and thus are ``comparable'' to qualified
positions. Note that positions classified using traditional Federal
position classification methods, including the GS position
classification system, do not emphasize an individual's skills. As
explained in III.B.2 of this document, traditional Federal position
classification primarily focuses on the work of a position and only
minimally accounts for the skills an individual brings to the work of a
position and how such skills may influence the performance of work.
Positions in DOD that have or could have a link to cybersecurity
responsibilities and an emphasis on an individual's skills, and thus
are comparable positions in DOD for purposes of implementing the Sec.
658 basic pay authority, include the following eleven types of
positions:
Senior Level/Scientific or Professional (SL/ST) positions
under 5 U.S.C. 5376;
Senior Executive Service (SES) positions under 5 U.S.C.
Chapter 31, Subchapter II;
Experts and consultants positions under 5 U.S.C. 3109;
Critical pay positions under 5 U.S.C. 5377;
DOD CES positions under 10 U.S.C. 1599f;
DOD DCIPS positions under 10 U.S.C. 1601 et seq.;
DOD highly qualified experts (DOD HQE) positions under 5
U.S.C. 9903;
Intelligence Community highly qualified experts (IC HQE)
under 50 U.S.C. 3024(f)(3)(A)(iii);
Intelligence Community (IC) critical pay positions under
50 U.S.C. 3024(s);
Scientific and Technology Reinvention Laboratories (STRL)
positions under 10 U.S.C. 2358c; and
Pilot cybersecurity professional positions under section
1110 of the National Defense Authorization Act for Fiscal Year
2018.\41\
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\41\ Public Law 115-91 (Dec. 2017).
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Positions ``authorized by [T]itle 5,'' while not clearly defined,
at least include positions specifically authorized in Title 5
provisions. Five of the eleven types of comparable positions in DOD are
also authorized in Title 5 provisions. Thus, positions authorized by
Title 5 that have or could have a link to cybersecurity
responsibilities and an emphasis on an individual's skills, and are
therefore comparable positions authorized by Title 5 for purposes of
implementing the Sec. 658 additional compensation authority, include
at least the following types of positions:
SL/ST positions under 5 U.S.C. 5376;
SES positions under 5 U.S.C. Chapter 31, Subchapter II;
Experts and consultants positions under 5 U.S.C. 3109;
Critical pay positions under 5 U.S.C. 5377; and
DOD HQE positions under 5 U.S.C. 9903.
[[Page 47848]]
It is important to note that the eleven types of comparable
positions are each comparable to a qualified position. As such, a
qualified position is simultaneously comparable to each of these eleven
types of comparable positions. This one-to-many relationship between a
qualified position and the eleven types of comparable positions affects
how DHS interprets and implements the Sec. 658 basic pay authority and
the Sec. 658 additional compensation authority, as discussed in the
following two sections, III.A.3.(b) Basic Pay and III.A.3.(c)
Additional Compensation.
(b) Basic Pay
Section 658(b)(2)(A) provides the Secretary basic pay authority and
parameters for exercising that authority by requiring the Secretary fix
rates of basic pay for qualified positions ``in relation to the rates
of pay provided for employees in comparable positions in the Department
of Defense and subject to the same limitation on maximum rates of pay
established for such employees by law or regulation.'' This authority
to fix rates of basic pay is authority to create and administer a new
salary system with a salary range and policies for setting and
adjusting salaries.\42\ Under 6 U.S.C. 658(b)(1)(B), the new salary
system is exempt from any other laws relating to classification or
compensation of employees, including the GS position classification
system and the associated GS pay system.\43\ The new salary system,
however, must adhere to the two parameters in the Sec. 658 basic pay
authority regarding rates of pay and maximum rates.
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\42\ Section 658(b)(2)(B) also provides the Secretary
discretionary authority for establishing a prevailing rate system,
which is not addressed by this rulemaking.
\43\ The new salary system is also exempt from any other laws
relating to the appointment or number of employees. 6 U.S.C.
658(b)(1)(B).
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(i) Rates of Pay and Pay Ranges
To ensure salaries under the new salary system are set in relation
to the rates of pay provided for employees in comparable positions in
DOD,\44\ the Department must interpret the ambiguous ``in relation to''
requirement, and apply it using the rates of pay for the eleven types
of comparable positions in DOD.
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\44\ 6 U.S.C. 658(b)(2)(A).
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Rates of pay are organized as pay ranges with a minimum rate and
maximum rate. The rates of pay provided for the eleven types of
comparable positions in DOD are nine different pay ranges established
in statute and DOD implementing documents. Because a qualified position
is simultaneously comparable to each type of comparable position in
DOD, all nine pay ranges are relevant in applying the ``in relation
to'' requirement. The nine pay ranges for the eleven types of
comparable positions in DOD are as follows:
Table 1--Pay Ranges for Comparable Positions in DOD
------------------------------------------------------------------------
Pay range
--------------------------------------------------- Comparable position
Minimum rate Maximum rate in DOD
------------------------------------------------------------------------
No minimum T1............... GS-15 step 10 T2.... Experts and
consultants
positions.
GG-7 or pay band 2 T3....... EX-IV T4............ DOD CES and DOD
DCIPS positions.
n/a......................... EX-IV T5............ DOD HQE positions.
120 percent of GS-15 minimum EX-II (with an OPM- SL/ST and SES
basic pay T6. certified positions.
performance
appraisal system,
otherwise EX-III)
T7.
Not less than the rate EX-I T9............. Critical pay
otherwise payable if not positions.
determined critical T8.
n/a......................... EX-I with Director IC critical pay
of National positions.
Intelligence
approval otherwise
EX-II T10.
n/a......................... Vice President's IC HQE positions.
salary T11.
n/a......................... 150 percent of EX-I STRL positions.
T12.
n/a......................... No maximum T13...... Pilot cybersecurity
professional
positions.
------------------------------------------------------------------------
T1 5 U.S.C. 3109(b).
T2 Id. This authority for expert and consultants positions also includes
an authority to supersede this maximum rate when specifically
authorized by appropriation or other statute.
T3 DODI 1400.25-V3007, DOD Civilian Personnel Management System: Cyber
Excepted Service (CES) Occupational Structure (Aug. 15, 2017), 6
(Entry/Developmental Work Level 1 for Professional Work Category in
CES Occupational Structure); DODI 1400.25-V2007, DOD Civilian
Personnel Management System: Defense Civilian Intelligence Personnel
System (DCIPS) Compensation Administration (Apr. 17, 2012), 27 (Entry/
Developmental Work Level 1 for Professional Work Category in DCIPS
Occupational Structure).
T4 DODI 1400.25-V3006, DOD Civilian Personnel Management System: Cyber
Excepted Service (CES) Compensation Administration (Aug. 15, 2017), 4
(``basic rates of pay will comply with the maximum pay limitation of
Level IV of the Executive Schedule for basic pay''); DODI 1400.25-
V2006, DOD Civilian Personnel Management System: Defense Civilian
Intelligence Personnel System (DCIPS) Compensation Administration
(Mar. 3, 2012, incorporating changes effective July 6, 2020), 9
(``adjusted basic pay may not exceed the rate of Level IV of the
Executive Schedule'').
T5 5 U.S.C. 9903(b).
T6 5 U.S.C. 5376(b) and 5382.
T7 Id.
T8 5 U.S.C. 5377(d).
T9 Id. This authority for critical pay positions also includes an
authority to supersede this maximum rate with written approval from
the President.
T10 50 U.S.C. 3024(s). This authority for IC critical pay positions also
includes an authority to supersede this maximum rate with presidential
approval.
T11 ICD 623, Intelligence Community Directive Number 623, Appointment of
Highly Qualified Experts (Oct. 16, 2008), 4 (``The DNI may set the
rate of basic pay for HQEs up to or equal to the salary of the Vice
President of the United States (as established by 3 U.S.C. 104)'').
T12 10 U.S.C. 2358c(d) s.
T13 National Defense Authorization Act for Fiscal Year 2018, Public Law
115-91, Sec. 1110(f), (Dec. 2017).
[[Page 47849]]
DHS interprets the ``in relation to'' requirement to mean that the
Secretary has discretion to establish and operate a new salary system
within the boundaries provided by the nine rate ranges for the eleven
types of comparable positions in DOD. Congress has used a similar ``in
relation to'' requirement in other compensation authorities, and courts
have held that such a requirement provides boundaries for determining
appropriate salaries under a compensation authority.\45\ The courts
also concluded that such a requirement gives the agency head discretion
to fill in the details within those boundaries.\46\ Legislative history
indicates that 6 U.S.C. 658 grants compensation flexibilities to better
recruit and retain cybersecurity talent with more competitive
compensation.\47\
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\45\ Crawford v. U. S., 179 Ct. Cl. 128 (1967) cert. denied 389
U.S. 1041 (1968) (construing ``in relation to'' in Section 2353(c)
of the Overseas Teacher Pay and Personnel Practices Act of 1959
(Pub. L. 86-91), which directed: ``The Secretary of each military
department shall fix the rates of basic compensation of teachers and
teaching positions in his military department in relation to the
rates of basic compensation for similar positions in the United
States . . .''); Homezell Chambers v. U.S, 306 F.Supp. 317 (E.D. Va
1969) (also construing the Section 2353(c) of the Overseas Teach Pay
and Personnel Practices Act of 1959); see also Reinheimer v. Panama
Canal Co., 413 F.2d 153 (5th 1969) (construing ``in relation to'' in
section 144(b) of title 2 of the Canal Zone Code (Pub. L. 73-431),
which directed salaries for employees of the Panama Canal Zone ``may
be established and revised in relation to rates of compensation for
the same or similar work performed in the continental United
States,'' as not meaning ``equal to'' but instead as indicating some
amount of discretion); Binns v. Panama Canal Co., 459 F.Supp. 956,
958 (D.C.Z. 1978) (discussing Reinheimer as holding that the ``in
relation to'' direction in section 144(b) of title 2 of the Canal
Zone Code ``allows the relational establishment of wages, and
therefore also allows deviations from wage rates which would be
identical to those of the same or similar positions in the
continental United States'').
\46\ Crawford v. U. S., 179 Ct. Cl. 128, 139 (1968) (stating
that the authority to fix the rates of basic compensation in
relation to the rates of basic compensation for similar positions
``merely set the boundaries of the program allowing the Secretary of
Defense to fill in the details. Nowhere did Congress fix salaries in
Public Law 86-91 [Overseas Teachers Pay and Personnel Act], nor did
it define the positions which were to be looked to in the United
States as similar to those occupied by the overseas teachers . . . .
That the Secretary was vested with discretion to issue regulations
governing the fixing of rates of basic compensation follows
unmistakably from the grant of authority contained in Section
2352(a)(2) of the Act [which provided the authority to fix rates of
basic compensation in relation to other rates of compensation and
required implementing regulations]''); Homezell Chambers v. U.S, 306
F.Supp. 317 (E.D. Va 1969) (affirming the Secretary of Defense's
discretion for determining overseas teacher pay).
\47\ See supra note 15.
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DHS determines that the boundaries of the new salary system, as
provided by the nine rate ranges for the eleven types of comparable
positions in DOD, may be from no minimum to 150 percent of EX-I or no
maximum. The nine rate ranges, presented in Table 1: Rate Ranges for
Comparable Positions in DOD, have several minimum rates, which start at
no minimum, and several maximum rates, which range up to 150 percent of
EX-I and no maximum. As discussed subsequently in III.B of this
document, the competitiveness of compensation, especially salary, is a
main factor contributing to DHS's challenges recruiting and retaining
cybersecurity talent. Therefore, as discussed further in IV.E.3 of this
document, the Department is using the highest maximum rates for the
upper boundary for the new salary system.
(ii) Limitations on Maximum Rates and Pay Caps
To ensure salaries under the new salary system are subject to the
same limitations on maximum rates for employees in comparable positions
in DOD established by law or regulation,\48\ DHS must identify the
``limitations on maximum rates'' for the eleven types of comparable
positions in DOD, and then apply those same limitations to the new pay
system.
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\48\ 6 U.S.C. 658(b)(2)(A).
---------------------------------------------------------------------------
Just as 6 U.S.C. 658 does not identify comparable positions in DOD,
it does not prescribe or identify the ``limitations on maximum rates of
pay'' for those comparable positions. Thus, to implement the ``the same
limitations on maximum rates'' requirement in 6 U.S.C. 658, DHS must
interpret the phrase ``limitations on maximum rates'' and apply it
using the eleven types of comparable positions in DOD.
DHS interprets ``limitations on maximum rates'' to mean salary
caps. Congress generally uses the term ``limitation'' within
compensation statutes to mean a pay or salary cap. U.S. Code sections
using the term ``limitation'' in a compensation context indicate that
the term means an amount cap.\49\ When used in conjunction with the
authority to fix or adjust rates of pay, the term ``limitation'' means
a salary cap.\50\ These U.S. Code sections also indicate that the term
``limitation'' often specifically refers to the salary cap for
administrative pay systems in 5 U.S.C. 5373 or 5306(e).\51\ The Sec.
658 basic pay authority is authority to create a new administrative
compensation system; however, under the exemption relating to the
compensation of employees in Sec. 658(b)(1)(B), the new salary system
is exempt from the salary cap in 5 U.S.C. 5373 and 5306(e). The new
system must instead comply with the ``same limitations on maximum
rates'' requirement in Sec. 658(b)(2)(A).
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\49\ See e.g., 5 U.S.C. 5307 (entitled ``Limitation on certain
payments'' and providing a general amount cap on total compensation,
which is known as the annual aggregate compensation cap); 5 U.S.C.
5547 (entitled ``Limitation on premium pay'' and providing an amount
cap on the aggregate of basic pay and premium pay under Title 5);
see also 5 U.S.C. 5759(c) and 10 U.S.C. 1091(b).
\50\ See e.g., 5 U.S.C. 5376 and 5382 (stating that basic pay
for SL/ST positions and SES positions is not subject to ``the pay
limitation in section 5306(e) or 5373''); see also 10 U.S.C.
9414(d); 24 U.S.C. 415(e); and 10 U.S.C. 1587a(e).
\51\ Id.
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DHS interprets the ``same limitations on maximum rates''
requirement to mean that the new salary system is subject to the same
salary caps applicable to the eleven types of comparable positions in
DOD. A maximum rate for a rate range serves as a salary cap. As shown
previously in Table 1, the pay ranges for the eleven types of
comparable positions in DOD each have at least one maximum rate, except
the pay range for pilot cybersecurity professional positions does not
include a maximum rate. For the comparable positions in DOD that have
more than one maximum rate, only the highest rate serves as a true
salary cap because the lower maximum rate can be superseded under
certain circumstances, whereas the higher rate serves as the absolute
limit for salaries in that rate range. As such, comparable positions in
DOD have six different salary caps based on their highest maximum rate.
Because a qualified position is simultaneously comparable to each type
of comparable position in DOD, all six salary caps are relevant in
applying the ``same limitations on maximum rates'' requirement. The six
relevant salary caps for the eleven types of comparable positions in
DOD are as follows:
Table 2--Salary Caps for Comparable Positions in DOD
------------------------------------------------------------------------
Maximum rate Comparable position in DOD
------------------------------------------------------------------------
GS-15 step 10..................... Experts and consultants positions.T1
EX-IV............................. DOD CES and DOD DCIPS positions; T2
and DOD HQE positions.T3
[[Page 47850]]
EX-II............................. SL/ST and SES positions (with an OPM-
certified performance appraisal
system).T4
EX-I.............................. Critical pay positions; T5 and IC
critical pay positions (with
Director of National Intelligence
approval) T6
Vice President's salary........... IC HQE positionsT7
150 percent of EX-I............... STRL positionsT8
------------------------------------------------------------------------
T1 5 U.S.C. 3109(b).
T2 DODI 1400.25-V3006, DOD Civilian Personnel Management System: Cyber
Excepted Service (CES) Compensation Administration (Aug. 15, 2017), 4,
and DODI 1400.25-V2006, DOD Civilian Personnel Management System:
Defense Civilian Intelligence Personnel System (DCIPS) Compensation
Administration (Mar. 3, 2012, incorporating changes effective July 6,
2020), 9.
T3 5 U.S.C. 9903(b).
T4 5 U.S.C. 5376(b) and 5382.
T5 5 U.S.C. 5377(d).
T6 50 U.S.C. 3024(s).
T7 ICD 623, Intelligence Community Directive Number 623, Appointment of
Highly Qualified Experts (Oct. 16, 2008), 4.
T8 10 U.S.C. 2358c(d).
Because the new salary system must set salaries subject to the
``same'' limitations on maximum rates for employees in comparable
positions in DOD, each of the six salary caps applies to the new salary
system. Congress uses the plural term ``limitations'' in the Sec. 658
basic pay authority, which indicates Congress contemplated, or at least
accounted for, the possibility of more than one salary cap; however,
Congress is silent on how multiple salary caps might apply to the new
salary system.
With the Secretary's broad authority and discretion for designating
and establishing qualified positions, determining comparable positions
in DOD, establishing a salary system within expansive boundaries, and
identifying salary caps to apply to the new salary system, it follows
that the Secretary also has implicit authority and discretion for how
to apply the six applicable salary caps. In exercising this authority
and discretion, the Secretary must ensure the new salary system is
subject to the ``same'' salary caps as comparable positions in DOD, and
as such, DHS is applying all six salary caps to the new salary system,
as discussed further under IV.E.3 of this document.
(c) Additional Compensation
Section 658(b)(3)(A) provides the Secretary discretionary
additional compensation authority and parameters for exercising that
authority by requiring that any discretionary additional compensation
for employees in qualified positions, must be ``consistent with, and
not in excess of the level authorized for, comparable positions
authorized by [T]itle 5, United States Code.'' Section 658(b)(3)(B)
also separately mandates one type of additional compensation,
allowances in nonforeign areas, and also mandates that employees in
qualified positions are eligible for such allowances under 5 U.S.C.
5941 on the same basis and to the same extent as if the employees were
covered under section 5941.
The Sec. 658 additional compensation authority for both
discretionary additional compensation and the separate, mandatory
allowances in nonforeign areas is exempt under 6 U.S.C. 658(b)(1)(B)
from any other laws relating to compensation.\52\ Any discretionary
additional compensation DHS provides, however, must adhere to the two
parameters that such additional compensation is ``consistent with''
comparable positions authorized by Title 5 and not in excess of ``the
level authorized for'' such positions.
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\52\ The Sec. 658 additional compensation authority is also
exempt from any other laws relating to the appointment, number, or
classification of employees. 6 U.S.C. 658(b)(1)(B).
---------------------------------------------------------------------------
(i) Consistent With
To provide discretionary additional compensation that is consistent
with comparable positions authorized by Title 5, DHS must interpret
this ambiguous ``consistent with'' requirement, and apply it using the
five types of comparable positions authorized by Title 5. As discussed
previously in III.C.3 of this document, comparable positions authorized
by Title 5 include SL/ST, SES, Experts and Consultants, Critical Pay,
and DOD HQE positions.
Based on Congress's choice of punctuation and syntax, it is clear
that discretionary additional compensation must be consistent with
comparable positions authorized by Title 5. Section 658(b)(3)(A)
directs that any discretionary additional compensation be ``consistent
with, and not in excess of the level authorized for, comparable
positions authorized by [T]itle 5.'' In section 658(b)(3)(A), the
phrase ``and not in excess of the level authorized for'' is set aside
by commas and is a non-essential clause that is not necessary for
reading the rest of the sentence.\53\ The sentence read without the
clause states that such additional compensation must be ``consistent
with . . . comparable positions authorized by [T]itle 5.'' Congress
reads the Sec. 658 additional compensation authority in just this
manner in the legislative history when it treats the syntax and
punctuation of the ``consistent with'' requirement as purposeful \54\
and omits the non-essential clause in describing the authority.\55\ A
report accompanying a previous bill, the language of which now is
codified at 6 U.S.C. 658, does not correct the syntax or punctuation of
the language, nor does it directly quote the
[[Page 47851]]
language, but uses slightly different language to describe the
requirement that discretionary additional compensation must be
consistent with comparable positions authorized by Title 5.\56\
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\53\ Non-essential clauses, a type of non-restrictive element,
do not limit the meaning of the words they modify. See William
Strunk, The Elements of Style (1st Ed. 2004), 9 (non-restrictive
elements ``do not limit the application of the words on which they
depend, but add, parenthetically, statements supplementing those in
the principal [elements]'').
\54\ Congress has used the same punctuation and syntax of the
``consistent with'' requirement since its creation in the bill
enacted as the DOD DCIPS authority; however, the legislative history
for the DOD DCIPS authority does not address the ``consistent with''
requirement. The draft bill stated:
(c) Additional Compensation, Incentives, and Allowances--(1)
Employees in defense intelligence component positions may be paid
additional compensation, including benefits, incentives, and
allowances, in accordance with this subpart if, and to the extent,
authorized in regulations prescribed by the Secretary of Defense.
(2) Additional compensation under this subsection shall be
consistent with, and not in excess of the levels authorized for,
comparable positions authorized by [T]itle 5.
S. 1745 (104th Congress 2d Session, July 10, 1996), Sec. 1132
(proposed for 10 U.S.C. 1590(c)) (emphasis added); H.R. 3230 (104th
Congress 2d Session, July 10, 1996), Sec. 1132 (proposed for 10
U.S.C. 1590(c) (also providing for allowances while stationed
outside the continental U.S. or in Alaska tied to the allowance
under 5 U.S.C. 5941) (emphasis added).
\55\ S. Rep. 113-207, Report of the Committee on Homeland
Security and Governmental Affairs, U.S. Senate, to accompany S.
2354, ``To Improve Cybersecurity Recruitment and Retention,'' (July
14, 2014), 4 (explaining the authority gives DHS authority to
``grant additional compensation, incentives, and allowances
consistent with comparable positions authorized by Title 5, United
States Code'').
\56\ Id. Note that the additional compensation language of then-
bill S. 2354 is identical to the language codified in 6 U.S.C.
658(b)(3).
---------------------------------------------------------------------------
Neither 6 U.S.C. 658 nor the legislative history explain or
identify how compensation can be consistent with a position. A
dictionary definition of the phrase ``consistent with'' signals that
the phrase does not require sameness.\57\ A case addressing the phrase
``consistent with'' in a corporate merger agreement confirms that
``consistent with'' does not require sameness, and also indicates that
this phrase has meaning only when comparing similar things.\58\
Additional compensation and positions are not the same, or even similar
things, and are not usually compared.
---------------------------------------------------------------------------
\57\ A dictionary definition of ``consistent with'' means
``marked by harmony, regularity, or steady continuity: free from
variation or contradiction'' and ``marked by agreement: Compatible-
usually used with with.'' Merriam-Webster, www.merriam-webster.com/dictionary/consistent (last visited May 25, 2021). Variation'' means
``the act or process of varying: the state or fact or being varied''
and ``vary'' means ``to make a partial change in: make different in
some attribute or characteristic.'' Merriam-Webster, https://www.merriam-webster.com/dictionary/variation (last visited May 25,
2021); https://www.merriam-webster.com/dictionary/vary (last visited
May 25, 2021). ``Contradiction'' means ``the act or instance of
contradicting'' and ``contradict'' means ``to assert the contrary
of; take issue with'' and ``to imply the opposite or denial of.''
Merriam-Webster, https://www.merriam-webster.com/dictionary/contradiction (last visited May 25, 2021); https://www.merriam-webster.com/dictionary/contradict (last visited May 25, 2021). This
dictionary definition has limited use because being free from
variation, which would not permit partial changes, is different from
being free from contradiction, which would not permit anything that
is the opposite.
\58\ Courts have not had an opportunity to consider this or any
other ``consistent with'' requirement in the Federal compensation
context. In Vry v. Martine Marietta Materials, Inc., 2003 WL 297309
(U.S. Dist Court, D. Minnesota) (2003). a district court held that a
company offered compensation and benefits ``at levels consistent
with'' prior levels as required by a corporate merger agreement,
even though new and prior compensation and benefits levels were not
the same. For example, while an employee's salary did not increase
as expected, it did not decrease; the 401k plan matching
contributions by the old company were dollar-to-dollar up to 4
percent of an employee's contributions, and the new company only
matched 50-cents-per-dollar, but up to 7 percent of an employee's
salary; pension plans were different, but the new company's plan
conferred greater benefits; and health insurance programs differed
with the old company offering a high deductible plan with negligible
premiums and the new company offering a plan with monthly premiums,
15 percent copays, and no deductible, but both plans imposed similar
burdens on the employee and reflect similar and reasonable
calculations and allocations of risk from an employee's perspective.
2003 WL 297309. Note, however, that the court was interpreting
language that required levels of compensation to be consistent with
levels of compensation, which differs from the language in 6 U.S.C.
658 requiring compensation to be consistent with positions.
---------------------------------------------------------------------------
Moreover, most additional compensation provided under Title 5
depends not on an individual's position, but on whether the individual
is an ``employee,'' as defined in Title 5. Under Title 5, most types of
additional compensation are available to an employee, regardless of the
employee's type of position.\59\
---------------------------------------------------------------------------
\59\ See e.g., 5 U.S.C. 4502 (making available incentive awards
of cash awards, honorary recognition, and time-off awards to an
``employee'' who satisfies other award-specific criteria that do not
include position type) and 5 U.S.C. 8333 and 8410 (stating that
retirement annuity is available to ``an employee'' who satisfies
certain eligibility requirements that do not include position type).
---------------------------------------------------------------------------
Although the language of the ``consistent with'' requirement is
ambiguous and confusing, the entire context of 6 U.S.C. 658 indicates
that the ``consistent with'' requirement can be satisfied by basing
additional compensation on authorities in Title 5.\60\ The heading of
the subparagraph providing the discretionary additional compensation
authority, and the ``consistent with'' requirement, is ``Additional
Compensation Based on Title 5 Authorities.'' \61\ Therefore, Congress
characterizes additional compensation that must be consistent with
comparable positions authorized by Title 5 as being based on Title 5
authorities. This characterization is in contrast to the subparagraph
heading mandating allowances in nonforeign areas, which is ``Allowances
in Nonforeign Areas'' and does not further characterize this type of
additional compensation.\62\
---------------------------------------------------------------------------
\60\ ``Statutory construction . . . is a holistic endeavor.''
Smith v. U.S., 508 U.S. 223, 233 (1993). The entire context of a
section or statute may clarify meaning of ambiguous language or
terminology. See id. (``A provision that may seem ambiguous in
isolation is often clarified by the remainder of the statutory
scheme--because the same terminology is used elsewhere in a context
that makes its meaning clear, or because only one of the permissible
readings produces a substantive effect that is compatible with the
rest of the law'').
\61\ 6 U.S.C. 658(b)(3)(A). This paragraph heading is also
borrowed from the DOD DCIPS authority at 10 U.S.C. 1603(a). This
heading was not in the draft bill for the DOD DCIPS authority, but
Congress added it when Congress moved the additional compensation
authority to its own paragraph before enactment. Originally,
Congress included the DOD DCIPS authority for additional
compensation and nonforeign allowances in one subsection with the
title: ``Additional Compensation, Incentives, and Allowances.'' S.
1745 (104th Congress 2d Session, July 10, 1996), Sec. 1132. Congress
eventually moved these compensation authorities to a separate
section, codified at 10 U.S.C. 1603, and retained the original
subsection title as the new section heading in the enacted version.
Compare 10 U.S.C. 1603 and S. 1745 (104th Congress 2d Session, July
10, 1996), Sec. 1132. In 10 U.S.C. 1603, Congress placed the
additional compensation authority in paragraph (a) and added the
heading indicating that Congress was granting DOD the authority to
offer additional compensation that is based on Title 5 additional
compensation provisions.
\62\ 6 U.S.C. 658(b)(3)(B).
---------------------------------------------------------------------------
Thus, DHS interprets the ``consistent with'' requirement as being
satisfied by ensuring any discretionary additional compensation is
based on Title 5 authorities, and those Title 5 authorities are
provisions regarding any type of additional compensation. In 6 U.S.C.
658(b)(3)(A), Congress identifies three types of additional
compensation: Benefits, incentives, and allowances. The terms
``benefits,'' ``incentives,'' and ``allowances'' are not defined in 6
U.S.C. 658, nor in Title 5, but are used in specific chapters,
subchapters, and sections of Title 5,\63\ along with other terms
describing additional compensation under Title 5.\64\ Even if a type of
Title 5 additional compensation is not necessarily a ``benefit,''
``incentive,'' or ``allowance,'' Congress gave the Secretary the
ability to consider such compensation under the Sec. 658 additional
compensation authority by using the term ``including,'' which signals
that the list of three possible examples of discretionary additional
compensation is not exhaustive.
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\63\ See e.g. 5 U.S.C. Chapter 45 (``Incentive Awards''),
Chapter 59 (``Allowances''), and 8903 (``Health benefit plans'').
\64\ See e.g. 5 U.S.C. 4505a (``Performance-based cash
awards''), 5379 (``Student loan repayments''), and 6303-6304
(``Annual leave'').
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DHS understands this responsibility to base any discretionary
additional compensation on Title 5 provisions as providing DHS
discretion over which, if any, types of additional compensation to
provide, as well as how to provide them. A base or foundation \65\ is
not usually the entirety of a thing, but it is instead something on
which more is built. Moreover, in contrast to the language mandating
allowances in nonforeign areas that explicitly requires following all
terms and conditions in Title 5 for those allowances, the language of
the discretionary additional compensation authority does not require
DHS use the terms and conditions of Title 5 provisions.\66\ Congress
uses
[[Page 47852]]
entirely different language for the discretionary additional
compensation, which signals a different requirement for such additional
compensation.\67\
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\65\ A dictionary definition of the verb ``based'' means ``to
make, form, or serve as a base for'' or ``to find a foundation or
basis for.'' Merriam-Webster, https://www.merriam-webster.com/dictionary/base (last visited May 25, 2021); see also Black's Law
Dictionary (5th Ed.) (defining ``basis'' as ``fundamental principle;
groundwork; support; the foundation or groundwork of anything; that
upon which anything may rest or the principal component parts of a
thing'').
\66\ Section 658(b)(3)(B) mandates that the Secretary provide an
employee in a qualified position an allowance in nonforeign areas
under 5 U.S.C. 5941 ``on the same basis and to the same extent as if
the employee was an employee covered by such section 5941, including
eligibility conditions, allowance rates, and all other terms and
conditions in law or regulation.''
\67\ Russello v. U.S., 464 U.S. 16, 23 (1983)(``[W]here Congress
includes particular language in one section of a statute but omits
it in another section of the same Act, it is generally presumed that
Congress acts intentionally and purposely in the disparate inclusion
or exclusion''); see also Bailey v. United States, 516 U.S. 137, 146
(1995) (``We assume that Congress used two terms because it intended
each term to have a particular, nonsuperfluous meaning. While a
broad reading of ``use'' undermines virtually any function for
``carry,'' a more limited, active interpretation of ``use''
preserves a meaningful role for ``carries'' as an alternative basis
for a charge'').
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DHS must base any discretionary additional compensation on Title 5
provisions regarding types of additional compensation, and DHS may
combine and streamline such provisions as long as it is clear which
specific Title 5 provisions serve as the base or foundation for
discretionary additional compensation. As discussed subsequently in
III.B of this document, the current inability to quickly construct and
nimbly adjust competitive total compensation packages is a main factor
in DHS's challenges recruiting and retaining cybersecurity talent.
Therefore, as discussed further in IV.E of this document, DHS is
combining and streamlining several provisions of Title 5 to establish
types of additional compensation specific to the new talent management
system, as well as providing traditional Federal employee benefits,
such as retirement, health benefits, and insurance programs.
(ii) The Level Authorized
To provide additional compensation that is not in excess of the
level authorized for comparable positions authorized by Title 5, DHS
must identify ``the level'' that applies for the five types of
comparable positions authorized by Title 5. The definite article
``the'' in 6 U.S.C. 658(b)(3)(A) limits ``level'' to being a specific
level authorized for those comparable positions.
The one, specific level under Title 5 that applies to Title 5
additional compensation for the five types of comparable positions
authorized by Title 5 is the aggregate compensation cap in 5 U.S.C.
5307. The aggregate compensation cap limits certain cash payments if,
when added to total basic pay, such a payment would cause the
employee's annual total pay to exceed level I of the Executive Schedule
(EX) or the salary of the Vice President.\68\ The cap amount that
applies--EX-I or the salary of the Vice President--depends on position
type. As discussed previously in III.A.3 of this document, comparable
positions authorized by Title 5, at the very least, include SL/ST, SES,
experts and consultants, critical pay, and DOD HQE positions. All
individuals in such positions that qualify as an ``employee'' are
subject to the aggregate compensation cap: The EX-I cap amount applies
to experts and consultants positions and critical pay positions,\69\
and the Vice President's salary amount cap applies to SL/ST, SES, and
DOD HQE positions.\70\
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\68\ 5 U.S.C. 5307.
\69\ 5 U.S.C. 5307(a).
\70\ 5 U.S.C. 5307(d)(1); 10 U.S.C. 9903(d)(3) (stating
``[n]otwithstanding any other provision of this section or of
section 5307,'' no additional payments may be made to an employee in
an HQE position if such payment would cause the employee's total
annual compensation to exceed the Vice President's salary).
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Because discretionary additional compensation must not be in excess
of the level authorized for comparable positions authorized by Title 5,
such additional compensation when added to the salary of an employee in
a qualified position may not cause that employee's aggregate
compensation to exceed either EX-I or the Vice President's salary. Both
annual aggregate compensation cap amounts are relevant in applying
``the level'' to discretionary additional compensation for qualified
positions because both cap amounts apply for the five types of
comparable positions authorized by Title 5, and a qualified position is
simultaneously comparable to each such type of comparable position.
With the Secretary's broad authority and discretion for designating
and establishing qualified positions, for determining comparable
positions authorized by Title 5, for deciding whether to provide
discretionary additional compensation, including what types and how to
provide them, and for identifying the aggregate compensation cap as the
level for such additional compensation, it follows that the Secretary
also has implicit authority and discretion for how to apply the two cap
amounts. In exercising this implicit authority and discretion, the
Secretary must ensure that any discretionary additional compensation
does not cause aggregate compensation for employees in qualified
positions to exceed the applicable amount for that limit, and as such,
DHS is applying both annual aggregate compensation cap amounts, as
discussed further under IV.E.7 of this document.
B. Need for a New Approach to Cybersecurity Talent Management
To implement the broad authority and discretion in 6 U.S.C. 658,
DHS set out to design a cybersecurity talent management system capable
of solving DHS's historical and ongoing challenges recruiting and
retaining cybersecurity talent. To do so, the specialized design team
formed in 2016 analyzed:
Historical DHS cybersecurity workforce data, including
input from current DHS employees and leaders about talent requirements
and gaps;
notable changes to talent management at Federal agencies
since the 1970s, including efforts commonly referred to as personnel
demonstration projects or alternative personnel or pay systems;
recommendations since the 1980s from non-profits,
academia, and public service experts related to modernizing the Federal
civil service and better supporting specialized, technical fields like
cybersecurity;
major trends and market forces affecting contemporary
workers in public service and in the field of cybersecurity; and
leading practices in both the public and private sectors
for recruiting and retaining cybersecurity talent.\71\
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\71\ The specialized DHS team reviewed many studies and reports
as part of its analysis. The most relevant reference materials are
listed in V. Appendix: Reference Materials of this document.
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This analysis confirmed the main factors contributing to DHS's
challenges recruiting and retaining cybersecurity talent: (1) The ever-
evolving nature of cybersecurity work; (2) an outdated and rigid
position classification system; and (3) a generic and inflexible
compensation approach based on position classification. Constant, often
unpredictable, changes in cybersecurity work require a focus on
individuals and their skills instead of a focus on narrowly-defined and
mostly-static jobs or positions created for predictable, stable work.
Significantly, DHS organizations struggle to effectively describe
cybersecurity work using outdated and rigid position classification
methods designed to apply generically across government and myriad
fields of expertise. DHS organizations also struggle to competitively
compensate employees using generic and inflexible compensation
structures that are closely linked to those classification methods.
The following discussion in III.B.1 through III.B.3 of this
document explains these main factors and DHS's need for a new approach
to cybersecurity talent management.
[[Page 47853]]
1. Ever-Evolving Nature of Cybersecurity Work Requires a Focus on the
Individual
To adequately accommodate the ever-evolving nature of cybersecurity
work, DHS must design and operate a new talent management system with a
greater focus on individuals and individuals' skills instead of
focusing on narrowly-defined and mostly-static jobs or positions. It is
important to note that the term ``skills,'' as used in this document,
encompasses a full array of knowledge, skills, abilities, behaviors,
aptitudes, competencies, and other characteristics and qualities that
distinguish talent.
Cybersecurity work, including the work necessary to execute the
dynamic DHS cybersecurity mission, constantly changes as technologies
and threats change. Cybersecurity work is knowledge work that requires
individuals to apply their skills to solve problems and achieve
outcomes, often in unpredictable ways. As cybersecurity work changes,
both the skills necessary to perform that work and how those skills are
applied to perform that work also change. With cybersecurity work, as
with some other types of knowledge work, an individual, because of that
individual's specific skills, can have a significant influence on how
work activities and tasks are performed as well as the quantity and
quality of resulting outcomes for the organization.
Additionally, cybersecurity work is intrinsically
multidisciplinary, requiring individuals with a variety of skills
associated with multiple academic disciplines and areas of professional
specialization. Cybersecurity work is frequently performed in a team
format in which individuals combine, and recombine, a variety of skills
to generate effective, and potentially novel, solutions to problems.
The manner in which they apply their collective skills is unique to the
circumstances of each problem and cannot always be anticipated or
described in advance. This collaborative work is often performed on an
ad hoc or project basis.
Notably, there is no singular or standard cybersecurity career
path, and work arrangements for cybersecurity talent continue to
change. For some contemporary workers, a 30-year Federal career is not
desirable, and it is increasingly common for individuals to have
careers with multiple significant shifts between employers, fields of
work, and types of jobs.\72\ A cybersecurity career may include a
variety of work arrangements, including part-time work, longer-term
jobs or assignments, and project-based work for limited periods of
time. Also, collaborative cybersecurity work is often performed
entirely through digital means by geographically dispersed individuals.
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\72\ See e.g., Bernard Marr, The Future of Work: 5 Important
Ways Jobs Will Change the 4th Industrial Revolution, Forbes, July
15, 2019, available at https://www.forbes.com/sites/bernardmarr/2019/07/15/the-future-of-work-5-important-ways-jobs-will-change-in-the-4th-industrial-revolution/#3ffd62b754c7 (last visited May 25,
2021); see also U.S. Office of Personnel Management, A Fresh Start
for Federal Pay: The Case for Modernization, (Apr. 2002), 7 and 42.
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To succeed amidst such constant changes in cybersecurity work,
individuals with cybersecurity skills look for career opportunities
that allow them to continually learn in order to keep their expertise
current and to acquire new skills.\73\ In coming years, the
proliferation of machine learning, artificial intelligence,
collaborative digital technology, and other advances will continue to
transform cybersecurity work, further reinforcing the requirement for
individuals performing cybersecurity work to maintain and acquire
relevant, valuable cybersecurity skills. As cybersecurity work evolves,
some cybersecurity skills can quickly become obsolete, while some new,
difficult-to-obtain skills may emerge and become highly prized.
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\73\ Id.
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Currently, the demand for cybersecurity talent is high and the
supply of cybersecurity talent is low, with studies continuing to
document and project dramatic critical skills shortages in terms of
hundreds of thousands of employees.\74\ With this shifting and growing
skills gap, the competition for cybersecurity talent among Federal
agencies and the private sector also shifts and grows. With more
cybersecurity jobs nationally than qualified candidates, many
individuals with sought-after cybersecurity skills are not active job
seekers, having secured jobs performing work aligned to their
interests.\75\ When an individual with uncommon cybersecurity skills
accepts a new cybersecurity job, it is often after being pursued by
several organizations interested in the individual's cybersecurity
expertise.\76\
---------------------------------------------------------------------------
\74\ See e.g., William Crumpler & James A. Lewis, The
Cybersecurity Workforce Gap, (Jan. 2019) available at https://www.csis.org/analysis/cybersecurity-workforce-gap (last visited May
25, 2021); (ISC\2\), Strategies for Building and Growing Strong
Cybersecurity Teams, (ISC\2\) Cybersecurity Workforce Study, 2019,
available at https://www.isc2.org/Research/2019-Cybersecurity-Workforce-Study (last visited May 25, 2021); Martin C. Libicki et
al., H4CKER5 WANTED: An Examination of the Cybersecurity Labor
Market, National Security Research Division, RAND Corporation (2014)
available at https://www.rand.org/content/dam/rand/pubs/research_reports/RR400/RR430/RAND_RR430.pdf (last visited May 25,
2021).
\75\ Id.
\76\ See e.g., (ISC)\2\, Hiring and Retaining Top Cybersecurity
Talent: What Employers Need to Know About Cybersecurity Jobseekers
(2018), available at https://www.isc2.org/Research/Hiring-Top-Cybersecurity-Talent (last visited May 25, 2021).
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Private sector employers have adjusted to the evolving nature of
cybersecurity work, careers, and work arrangements by adopting new
person- and skill-focused talent management practices that enable them
to compete for critical talent. Such new practices include: Proactive
recruitment to identify and seek out individuals who could be
successful at cybersecurity work, even if they have never held a job in
the field; eliminating traditional job requirements, like academic
degrees, to avoid unnecessarily limiting applicant pools; and providing
training to help employees keep skills current.\77\
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\77\ See e.g., (ISC)\2\, Strategies for Building and Growing
Strong Cybersecurity Teams, (ISC)\2\ Cybersecurity Workforce Study,
2019, available at https://www.isc2.org/Research/2019-Cybersecurity-Workforce-Study (last visited May 25, 2021); Emil Sayegh, As the End
of 2020 Approaches, The Cybersecurity Talent Drought Gets Worse,
Forbes, Sep. 22, 2020, available at https://www.forbes.com/sites/emilsayegh/2020/09/22/as-the-end-of-2020-approaches-the-cybersecurity-talent-drought-gets-worse/?sh=104825545f86 (last
visited May 25, 2021).
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DHS can address its historical and ongoing challenges recruiting
and retaining cybersecurity talent by designing a new talent management
system with a focus on the individual and individuals' skills. To do
so, DHS must create qualified positions based on individuals and
skills. DHS must design and operate recruitment, application, and
hiring processes to identify individuals with necessary skills as well
as individuals likely to perform DHS cybersecurity work successfully,
including those starting their careers who show promise and have an
interest in public service. DHS must also design and operate a
compensation system providing flexibility to adjust to cybersecurity
talent market demands and recognize how employees influence and
contribute to the cybersecurity mission. DHS can do this under the
authority and exemptions in 6 U.S.C. 658, especially the Secretary's
broad authority and discretion for designating and establishing
qualified positions and the exemption relating to classification of
employees.
2. Outdated, Rigid Position Classification Inadequately Describes
Cybersecurity Work
Instead of using position classification methods and related talent
management
[[Page 47854]]
practices, DHS must create a new work valuation system that recognizes
that cybersecurity work is constantly evolving and that the performance
of cybersecurity work is highly dependent on the skills of individuals.
Traditional Federal position classification serves as the
foundation for many existing Federal civilian talent management
practices and provides structures that influence talent management for
much of the Federal civil service across agencies. The design and
operation of traditional Federal position classification methods,
however, presume that mission requirements, technology, fields of work,
and position duties are generally static and stable.\78\ Traditional
Federal position classification is based on the core concepts that
Federal work is largely predictable and can be defined and valued using
the same processes regardless of mission, the nature of the work, or
the individual performing the work.\79\
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\78\ U.S. Government Accountability Office reports: Human
Capital: OPM Needs to Improve the Design, Management, and Oversight
of the Federal Classification System, GAO-14-677 (July 2014) 14-18;
Human Capital: Opportunities to Improve Executive Agencies' Hiring
Process, GAO-03-450 (May 2003), 14.
\79\ Joseph W. Howe, History of the General Schedule
Classification System, prepared for the U.S. Office of Personnel
Management, Final Report FR-02-25 (Mar. 2002) (Howe Final Report FR-
02-25) 8, 91, 93.
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Traditional Federal position classification methods are too rigid
and outdated for cybersecurity talent management at DHS because they
cannot effectively describe and support the ever-evolving cybersecurity
work associated with DHS's dynamic cybersecurity mission. Traditional
Federal position classification has been the foundation of most Federal
civilian talent management practices since the GS position
classification system was established in the Classification Act of
1949,\80\ which was based on the first law regarding work valuation,
the Classification Act of 1923.\81\ While the core concepts and major
features of the GS position classification system were established
almost 100 years ago, they have remained largely unchanged. Notably,
classification reform was excluded from the largest transformation of
Federal talent management in the last 50 years, the Civil Service
Reform Act of 1978.\82\
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\80\ Public Law 81-429 (Oct. 28, 1949).
\81\ Public Law 67-516 (Mar. 4, 1923). The purpose of the
Classification Act of 1949 was to improve the design and
administration of the work valuation system from 1923 and improve
the pay plan that developed around the 1923 work valuation system.
See Howe Final Report FR-02-25 at 1. The Classification Act of 1923
was repealed by the Classification Act of 1949, and that Act was
repealed in 1966 by the law enacting Title 5 and codifying the
provisions of the Classification Act of 1949 in 5 U.S.C. Chapters 51
and 53. See Public Law 89-544 (Aug. 1966).
\82\ Public Law 95-454 (Oct. 1978); Howe Final Report FR-02-25
at 148 (``The cumulative effect of the new statute and the
reorganization [the Civils Service Reform Act of 1978 and the
Reorganization Plan No. 2 of 1978] was to change virtually every
aspect of personnel management--except for job evaluation under the
General Schedule and the Federal Wage System, both of which were
untouched by civil service reform'').
---------------------------------------------------------------------------
Traditional Federal position classification primarily focuses on
the work of a position and minimally accounts for the individual or the
individual's skills, including how the individual's skills may
influence the performance of work. For decades scholars and
practitioners have discussed the problems with traditional Federal
position classification's ability to describe knowledge work,\83\
particularly when multiple disciplines are applied by one position or
individual and when work assignments change quickly. For example, the
U.S. Government Accountability Office (GAO) recently highlighted that,
almost since the inception of the GS position classification system in
1949, critics have raised questions about its ability to keep pace with
the evolving nature of government work.\84\ GAO had previously
explained: ``The classification process and standard job
classifications were generally developed decades ago when typical jobs
were more narrowly defined and, in many cases, were clerical or
administrative. However, today's knowledge-based organizations' jobs
require a broader array of tasks that may cross over the narrow and
rigid boundaries of job classification.'' \85\ GAO emphasized that
under traditional Federal position classification, ``the resulting job
classifications and related pay might not match the actual duties of
the job. This mismatch can hamper efforts to fill the positions with
the right people.'' \86\
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\83\ Knowledge work involves problem solving and leveraging a
worker's knowledge to accomplish the work, which may be in the form
of a job, process, task, or goal. Knowledge work is contrasted with
manual work that involves simple unskilled motions, and adding
knowledge to that manual work influences the way the motions are put
together organized and executed. See Peter F. Drucker, Knowledge
Worker Productivity: The Biggest Challenge, 41 California Management
Review 79 (Winter 1999).
\84\ U.S. Government Accountability Office reports: Federal
Workforce: Talent Management Strategies to Help Agencies Better
Compete in a Tight Labor Market, GAO-19-723T (Sept. 2019), 5;
Priority Open Recommendations: Office of Personnel Management, GAO-
19-322SP (Apr. 2019), 2; and Human Capital: OPM Needs to Improve the
Design, Management, and Oversight of the Federal Classification
System, GAO-14-677 (July 2014), GAO Highlights section.
\85\ U.S. Government Accountability Office, Human Capital:
Opportunities to Improve Executive Agencies' Hiring Process, GAO-03-
450 (May 2003), 14.
\86\ Id.
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Additionally, position classification standards, which supply the
criteria for classifying positions, describe work as it existed and was
performed throughout Federal agencies at the time the standards were
developed.\87\ Rigid position classification standards are not--and
have never been--able to adequately support the emerging field of
cybersecurity or keep pace with rapid changes in how cybersecurity work
is performed. For example, the first position classification standards
for the digital computer occupation were published in 1958, but ``rapid
changes in technology'' necessitated updates to those newly published
standards only one year later in 1959.\88\ Decades later in 1989, the
Merit System Protection Board highlighted that Federal computer-focused
work was subject to more rapid change than work in other fields.\89\
Despite such findings, updates to position classification standards
related to cybersecurity have remained infrequent, even as
technological change has accelerated.\90\ Currently, a classification
determination using outdated position classification standards dictates
a cybersecurity position's salary under Title 5 and such a
determination also constricts potential future salary for any
individual appointed to the position.\91\ Existing position
classification methods cannot accommodate or address significant
changes in the cybersecurity work of such a position or easily
acknowledge changes in the skills needed to perform the work.\92\
---------------------------------------------------------------------------
\87\ U.S. Office of Personnel Management, Introduction to the
Position Classification Standards (2009), 20.
\88\ Howe Final Report FR-02-25 at 78.
\89\ Id. at 283.
\90\ See e.g., U.S. Office of Personnel Management, Job Family
Standard for Administrative Work in the Information Technology
Group, 2200, (May 2001, revised Aug. 2003, Sept. 2008, May 2011,
Oct. 2018) (documenting that in the first two decades of the 21st-
century this classification standard was updated only four times,
and before May 2001, the predecessor Computer Specialist Series, GS-
334, which covered the majority of two-grade interval work in this
field, was last revised in July 1991).
\91\ U.S. Office of Personnel Management, A Fresh Start for
Federal Pay: The Case for Modernization, (Apr. 2002), 27 (``In the
Federal Government, job evaluation points = grade = base pay. Under
this approach, job evaluation does not simply inform base pay; it
dictates base pay) (emphasis original).
\92\ Id. (``The [Federal compensation] system's architecture and
guidelines do not permit Federal agencies to allow non-
classification factors--such as the importance of the work to the
employing agency, salaries paid by competing employers, turnover
rates, and added value derived from employees acquiring additional
competencies applicable to the same level of work--to influence base
pay, other than by notable exception.'')
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[[Page 47855]]
Congress has long recognized the role traditional Federal position
classification plays in hampering flexibility and innovation when
addressing recruitment and retention challenges. As part of authorizing
a series of human capital flexibilities for civilian intelligence
organizations in DOD in the 1980s, now consolidated within the DOD
DCIPS authority,\93\ Congress included an exemption from laws relating
to ``classification'' for those DOD organizations.\94\ This
classification exemption in the DCIPS predecessor authorities is the
origin of the similar exemption relating to classification in 6 U.S.C.
658(b)(1)(B).\95\ Nearly 40 years ago, in the legislative history for
one of the DOD DCIPS predecessor authorities, Congress recognized that
the Defense Intelligence Agency ``must be able to compete effectively
in the job market for these skills [in foreign intelligence analysis]
and offer rewarding career prospects to retain personnel.'' \96\
Congress also recognized: ``Intelligence personnel management systems
also need to be flexible to adjust to changing intelligence interests
as driven by a dynamic world environment.'' \97\ In this legislative
history, Congress specifically called out the classification exemption
stating: ``Classification authority would be granted to permit
establishment of compensation based on individual capabilities and to
ensure timely assignment and utilization of high quality personnel to
meet changing intelligence requirements.'' \98\
---------------------------------------------------------------------------
\93\ The DOD DCIPS authority was a consolidation of two
predecessor DOD authorities relating to civilian intelligence
personnel in 10 U.S.C. 1604 specific to the Defense Intelligence
Agency (DIA) and in 10 U.S.C. 1590 for other civilian intelligence
officers and employees. See National Defense Appropriations Act for
Fiscal Year1997 Public Law 104-201, Sec. 1632 and 1633(a) (Sept.
1996).
\94\ 10 U.S.C. 1590 (1995) and 10 U.S.C. 1604 (1995).
\95\ The DOD DCIPS exemption authority came from those two
predecessor DOD authorities, and the Sec. 658 exemption language
mirrors the DOD DCIPS exemption authority. See 10 U.S.C. 1590
(1995); 10 U.S.C. 1604 (1995); and 10 U.S.C. 1601(b) (2014).
\96\ S. Rep. 98-481, Authorizing Appropriation for Fiscal Year
1985 For Intelligence Activities of the U.S. Government, The
Intelligence Community Staff, the Central Intelligence Agency
Retirement and Disability System (CIARDS), and for other purposes,
Report [To accompany S. 2713] (May 24, 1984), 8.
\97\ Id.
\98\ Id. at 9.
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The exemption relating to classification in 6 U.S.C. 658 exempts
DHS from traditional Federal position classification systems and
methods and allows DHS to establish a new work valuation system to
serve as a new foundation for new, specialized talent management
practices. A new work valuation system must have new structures to
adequately describe ever-evolving DHS cybersecurity work. It must also
support creating qualified positions based on cybersecurity skills and
the individuals with those skills and operating new talent management
practices for those positions. Importantly, a new work valuation system
is necessary for a new compensation system and must enable and support
new practices for providing competitive compensation.
3. Generic, Inflexible Compensation Limits Ability To Compete for
Cybersecurity Talent
Instead of existing compensation practices linked to traditional
Federal position classification, DHS needs a new, market-sensitive
salary system and an agile approach to providing other compensation for
cybersecurity talent. Current Federal civilian compensation practices
under Title 5 authority are designed to apply and be administered
across a range of agencies, missions, and types of work.\99\ DHS needs
a different compensation approach for the same reasons that DHS needs
to create a new work valuation system: To recognize that cybersecurity
work is constantly evolving and to recognize that the performance of
cybersecurity work is highly dependent on the skills of individuals.
Changing the underlying work valuation system of a talent management
system also necessitates changing the connected compensation
system.\100\
---------------------------------------------------------------------------
\99\ See generally, U.S. Office of Personnel Management, A Fresh
Start for Federal Pay: The Case for Modernization, (Apr. 2002), 31-
34.
\100\ Id. at 4-11.
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Current compensation approaches for most positions in the Federal
civil service are based on the same core concepts as traditional
Federal position classification: Federal work is presumed to be largely
predictable and able to be described and valued using the same
processes regardless of mission, the nature of the work, or the
individual performing the work. Such Federal compensation approaches
use traditional Federal position classification structures, including
classes and grades, to facilitate systematic management of Federal
employees and address internal equity among similar positions across
Federal agencies.\101\ These structures ensure that positions are
described and paired with salary rates in a consistent manner using
generic salary structures, including the GS pay system, that apply
across myriad fields of work and cannot effectively account for an
individual's cybersecurity skills or the cybersecurity work an
individual performs.\102\ For example, the specific requirements for
salary progression under the GS pay schedule, including grade and step
increases, assume that an employee becomes better at work, more
qualified, and more valuable to an agency with each passing year.\103\
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\101\ See generally, U.S. Office of Personnel Management, A
Fresh Start for Federal Pay: The Case for Modernization, (Apr.
2002), 26-30.
\102\ Id.
\103\ Id.
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As discussed previously, however, cybersecurity work is constantly
changing and performance of DHS cybersecurity work depends on
individuals with mission-critical skills, which also change as
technology and threats change. Moreover, the cybersecurity skills that
are the most valuable to DHS today might not be as valuable to DHS in
five, ten, or 30 years. For example, DHS, like many cybersecurity
employers, now needs individuals with skills related to mobile
technology, cloud computing, the Internet of Things, embedded and
cyber-physical systems, blockchain, cryptocurrency and ransomware and
cyber extortion; the DHS cybersecurity mission did not require all
these skills and specializations ten or even five years ago.
Additionally, there is a specific, competitive talent market for
cybersecurity that comprises both cybersecurity talent, which is
individuals with cybersecurity skills, and cybersecurity employers,
including Federal agencies and private sector employers. As discussed
previously, the current demand for cybersecurity talent is high, and
the supply of cybersecurity talent is low.\104\ This relationship
between demand for and supply of cybersecurity talent causes
competition among employers for top cybersecurity talent, and as a
result, individuals with cybersecurity skills, especially uncommon
skills, have their choice of employment opportunities.\105\
---------------------------------------------------------------------------
\104\ See supra note 74.
\105\ See supra note 76.
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In competing for top cybersecurity talent, DHS has the advantage of
its unique cybersecurity mission. DHS's cybersecurity mission offers
DHS cybersecurity talent the opportunity to work across organizations
and with key external partners and stakeholders to identify and
mitigate national cybersecurity risks. Unfortunately, DHS cannot
currently compete with compensation packages offered by many
[[Page 47856]]
private sector employers. DHS's ability to offer competitive
compensation to top cybersecurity talent, including individuals with
uncommon, mission-critical skills, is limited by generic Federal salary
structures, inflexible rules and practices for setting and adjusting
salaries, and inflexible rules and practices for providing other
compensation.
In contrast, many private sector employers can offer individuals
with cybersecurity expertise competitive starting salaries as well as
the possibility of more rapid raises and significant other
compensation, such as automatic signing bonuses.\106\ Many private
sector employers are also able to swiftly adjust their compensation
packages to recruit and retain top talent, and they do so with an
understanding of their major competitors and those competitors'
approaches to compensation. These private sector employers have
compensation strategies and techniques with built-in agility to respond
to business or market changes.\107\
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\106\ See generally, U.S. Office of Personnel Management, A
Fresh Start for Federal Pay: The Case for Modernization, (Apr.
2002), 4-11, 18.
\107\ Id. at 6, 18.
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In addition to salaries, compensation in the cybersecurity talent
market includes types of other compensation. DHS could offer other
compensation using the existing Federal compensation toolset; however,
it is both cumbersome to use and ineffective for constructing market-
sensitive compensation packages capable of recruiting highly-skilled
cybersecurity talent.\108\ That toolset comprises a complex set of
separate types of compensation for specific Federal talent management
situations and are not intended to form a cohesive set. For example,
there are multiple types of incentives and cash payments
available,\109\ and each type applies to a different recruitment or
retention situation and has different rules and requirements, including
approvals, amount limitations, and administration processes.\110\ This
incohesive toolset also is designed to complement generic Federal
salary structures, and much like those structures, it is designed to
apply and be administered across a range of agencies, missions, and
fields of work, and is not intended to be market-sensitive.\111\ To
construct a competitive compensation package, especially one that is
responsive to the talent market, requires piecing together these
separate types of compensation and attempting to do so in a timely
manner.
---------------------------------------------------------------------------
\108\ See, U.S. Office of Personnel Management, A Fresh Start
for Federal Pay: The Case for Modernization, (Apr. 2002), 4 (``The
divergence between the Federal pay system and the broader world of
work where the war for talent must be fought has led observers to
call for reform of the Federal system. To support achievement of the
Government's strategic goals, a new, more flexible system may be
called for, one that better supports the strategic management of
human capital and allows agencies to tailor their pay practices to
recruit, manage, and retain the talent to accomplish their
mission'').
\109\ See e.g., 5 U.S.C. 4502 (providing awards for a
suggestion, invention, superior accomplishment or other meritorious
effort); 5 U.S.C. 4503 (providing agency awards for special acts); 5
U.S.C. 4505a (providing performance-based awards for GS employees);
5 U.S.C. 4523 (providing foreign language capabilities awards for
law enforcement officers); and 5 U.S.C. 5753-5754 (providing
recruitment incentives, relocation incentives, and retention
incentives).
\110\ See id. For example, 5 U.S.C. 5753 and 5754 provides
incentives for recruitment, relocation, and retention, which are
commonly referred to as the ``3Rs''; however, the 3Rs have separate
requirements for each of specific situations.
\111\ See, U.S. Office of Personnel Management, A Fresh Start
for Federal Pay: The Case for Modernization, (Apr. 2002), 12-16.
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The compensation authority in 6 U.S.C. 658, as well as the
exemptions relating to classification and compensation, allows DHS to
establish a new compensation system to effectively recruit and retain
cybersecurity talent by offering competitive compensation. And if DHS
is creating a new work valuation system, DHS must create a new
compensation approach that is based on that new work valuation system.
A new compensation system also must be based on cybersecurity skills,
people with those skills, and the value of those skills to DHS. Such an
approach to compensation must be informed both by DHS mission needs and
trends affecting compensation of individuals with cybersecurity skills
in the broader cybersecurity talent market. A new compensation system
must provide flexibility to adjust to cybersecurity talent market
demands and recognize mission impact, instead of rewarding longevity in
position or Federal government service; it must also provide
flexibility to consider an individual's total compensation and quickly
construct and nimbly adjust a competitive total compensation package.
IV. Discussion of the Rule
To address the Department's historical and ongoing challenges
recruiting and retaining cybersecurity talent, DHS is re-envisioning
talent management for 21st-century cybersecurity work under the
authority in 6 U.S.C. 658. The result is CTMS.
CTMS is a mission-driven, person-focused, and market-sensitive
approach to talent management. CTMS relies on new concepts and
definitions and features interrelated elements, which are new
processes, systems, and programs, that are based on leading public and
private sector talent management practices.
CTMS is designed to be responsive to the ever-evolving field of
cybersecurity and the dynamic DHS cybersecurity mission. This
innovative talent management approach is intended to support and remain
aligned to the cybersecurity work that executes the DHS cybersecurity
mission, even as technology, relevant expertise, and cybersecurity work
arrangements change.
The result of this approach to talent management is the DHS-CS. The
DHS-CS comprises qualified positions created under CTMS and employees
serving in those positions and covered by CTMS.
The DHS-CS is a new cadre within the broader DHS cybersecurity
workforce supporting execution of the DHS cybersecurity mission. The
DHS-CS is not intended to replace the DHS civilian employees and United
States Coast Guard Military personnel currently performing work
relating to cybersecurity.
DHS will first use CTMS and hire the first DHS-CS employees in the
Cybersecurity and Infrastructure Security Agency (CISA) and DHS Office
of the Chief Information Officer (DHS OCIO). DHS will operate CTMS in
work units consistent with its rights and obligations under the Federal
Service Labor Management Relations Statute. Additionally, 6 U.S.C.
658(e) prohibits the involuntary conversion of existing DHS employees
into the DHS-CS. Accordingly, current DHS employees will not be placed
into qualified positions or required to join the DHS-CS. All
individuals interested in supporting the DHS cybersecurity mission by
serving in the DHS-CS, including current DHS employees, other Federal
employees, and private citizens, must apply for employment under CTMS.
DHS is adding a new part 158 to Title 6 of the Code of Federal
Regulations to implement and govern CTMS and the DHS-CS. Part 158
contains several subparts setting forth the interrelated CTMS elements
that function together as a complete talent management system. The
subparts and sections in part 158 contain internal cross-references
indicating where one element of the system influences another element.
Subparts A and B of part 158 address the new approach to talent
management, new talent management concepts and CTMS-specific
definitions, and the
[[Page 47857]]
DHS-CS. Subpart C addresses CTMS and DHS-CS leadership. Subpart D
introduces the CTMS element of strategic talent planning that enables
CTMS to be mission-driven, person-focused, and market-sensitive.
Subparts E, F, G, and H address CTMS elements for acquiring talent,
compensating talent, deploying talent, and developing talent,
respectively. Subpart I addresses Federal civil service employee rights
and requirements that apply under CTMS and in the DHS-CS and Subpart J
addresses CTMS political appointments, known as advisory appointments.
New part 158 establishes CTMS and the DHS-CS and the policy
framework for both. Part 158 sets the parameters for how DHS will
administer CTMS and manage the DHS-CS. Internal DHS policy implementing
part 158 will provide operational detail. Part 158 implements the
Secretary's authority in 6 U.S.C. 658 and it is the Secretary or the
Secretary's designee who establishes and administers CTMS and
establishes and manages the DHS-CS. Part 158 also makes clear that it
is the Secretary or the Secretary's designee who establishes and
administers the CTMS elements, while it is the ``Department'' that
operates the elements. As defined in Sec. 158.104, the term
``Department'' means the Department of Homeland Security. In internal
DHS policy implementing part 158, the Secretary will, as necessary,
delegate authority and designate and delineate roles and
responsibilities for specific DHS organizations and officials.
A. New Approach to Talent Management: Subparts A & B
Subpart A in new 6 CFR part 158 addresses the design,
establishment, and coverage of CTMS and the DHS-CS, the authority for
part 158, and new talent management concepts and CTMS-specific
definitions. Subpart B in new part 158 addresses the DHS-CS and sets
out the main aspects of the DHS-CS and employment in the DHS-CS.
1. Subpart A--General Provisions
Part 158, subpart A, General Provisions, contains regulations
addressing the design and establishment of CTMS. CTMS encompasses the
definitions and processes, systems, and programs established under part
158. As stated in Sec. 158.101, CTMS is designed to recruit and retain
individuals with the qualifications necessary to execute the DHS
cybersecurity mission. CTMS is also designed to adapt to changes in
cybersecurity work, the cybersecurity talent market, and the DHS
cybersecurity mission.
Along with CTMS, DHS is establishing the DHS-CS. See Sec. 158.101.
As defined in Sec. 158.104, the DHS-CS comprises all qualified
positions designated and established under CTMS and all employees
appointed to qualified positions. DHS hires, compensates, and develops
DHS-CS employees using CTMS. Section 158.103 explains that part 158
covers CTMS, the DHS-CS, all individuals interested in joining the DHS-
CS, all DHS-CS employees, and all individuals involved in managing DHS-
CS employees and all individuals involved in any talent management
actions using CTMS.
The adaptable design of CTMS enables DHS to manage the DHS-CS with
a focus on mission-critical qualifications, even as cybersecurity work,
the cybersecurity talent market, and the DHS cybersecurity mission
change.
As discussed previously in III.A of this document, the authority in
6 U.S.C. 658, especially the authority and discretion for designating
and establishing qualified positions and the exemption from laws
relating to classification, enable DHS to create this new mission-
driven, person-focused, and market-sensitive approach. As also
discussed previously in III.B, DHS needs this new approach for 21st-
century cybersecurity work and to address DHS's challenges recruiting
and retaining cybersecurity talent.
(a) A New Type of Position: Qualified Positions
Under part 158, ``qualified position'' means CTMS qualifications
and DHS-CS cybersecurity work, the combination of which is associable
with an employee. See Sec. 158.104. The purpose of this conceptual
definition of qualified position is to capture the relationship between
CTMS qualifications and DHS-CS cybersecurity work: An individual with
those qualifications should be able to successfully and proficiently
perform that range of cybersecurity work. The cybersecurity work of a
qualified position represents a range of potential DHS cybersecurity
work, in acknowledgement that qualifications can be applied in a
variety of ways to produce a variety of work outcomes, including some
that are hard to predict or describe in detail in advance. DHS also
uses the term qualified position in the administration and operation of
CTMS to refer to the specific qualified position established for a DHS-
CS employee upon appointment. A DHS-CS employee's qualified position is
the employee's assessed CTMS qualifications and the range of work that
employee can successfully and proficiently perform with those
qualifications. When DHS documents a DHS-CS employee's qualified
position as part of recordkeeping under Sec. 158.706, DHS is
documenting that employee's CTMS qualifications and the employee's
related range of work.
DHS is creating qualified positions as a new type of Federal civil
service position with a focus on individuals and qualifications under
the Secretary's authority and discretion for designating and
establishing qualified positions and the exemption from laws relating
to classification in 6 U.S.C. 658. DHS is not using existing types of
positions defined under Chapter 51 position classification, or
processes from Title 5 or other laws, to create qualified positions.
As explained previously in III.C.1 of this document, under the
authority and exemptions in 6 U.S.C. 658, DHS may determine the use of
qualified positions and create such positions as new positions in the
excepted service. DHS may do so without regard to existing definitions
of positions, and how the concept of position is currently used, in
other Federal talent management systems. DHS designates and establishes
qualified positions based on the DHS cybersecurity mission and the
skills, or qualifications, individuals must possess to execute that
mission.
Designating and establishing qualified positions based on the DHS
cybersecurity mission and individuals' qualifications implements the
statutory definition and description of qualified position. Section 658
defines a qualified position as a position, designated by the
Secretary, in which the incumbent performs, manages, or supervises
functions that execute the responsibilities of DHS relating to
cybersecurity.\112\ The statute also describes qualified positions as
positions the Secretary, in establishing those positions, determines
are necessary to carry out DHS's cybersecurity responsibilities.\113\
In both instances, the statute vests substantial discretion in the
Secretary to determine which positions are qualified positions under
the statute. This rule retains that discretion.
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\112\ 6 U.S.C. 658(a)(5).
\113\ 6 U.S.C. 658(b)(1)(A)(i).
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Designating and establishing qualified positions as a new type of
position also implements the statutory description of establishing
qualified positions, which indicates they may be a type of position or
a category that includes several types of positions. The statutory
description of establishing qualified positions states
[[Page 47858]]
that qualified positions may include positions ``formerly identified
as'' SL/ST positions and SES positions.\114\ The ``formerly identified
as'' language identifies SL/ST positions and SES positions as examples
of types of positions the Secretary may designate and establish as
qualified positions.\115\ Thus, qualified positions may be similar to
SL/ST positions and SES positions, but these non-exhaustive examples do
not limit the Secretary to creating qualified positions only as SL/ST-
like positions and SES-like positions.\116\
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\114\ 6 U.S.C. 658(a)(b)(1)(A)(i)(I)-(II).
\115\ Congress also explicitly excludes any ``qualified
positions'' established under 6 U.S.C. 658 from the definition of
``Senior Executive Position'' under Title 5. 5 U.S.C. 3132
(a)(2)(iii).
\116\ While the Secretary has broad authority and discretion to
create qualified positions, the Secretary may not create qualified
positions from existing DHS positions through the involuntary
conversion of positions, and DHS employees serving in those
positions, from the competitive service to the excepted service. 6
U.S.C. 658(e).
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The Secretary or designee designates and establishes qualified
positions in the excepted service as the Secretary or designee
determines necessary for the most effective execution of the DHS
cybersecurity mission. See Sec. 158.203. Designating and establishing
qualified positions is discussed further in IV.A.2 of this document.
(b) A New Definition of ``Qualifications''
As mentioned previously, DHS is defining individuals' cybersecurity
skills as ``qualifications'' for purposes of designating and
establishing qualified positions. Individuals' cybersecurity skills
encompass a full array of characteristics and qualities that
distinguish talent.
Under part 158, ``qualification,'' means a quality of an individual
that correlates with the successful and proficient performance of
cybersecurity work, such as capability, experience and training, and
education and certification. See Sec. 158.104. A capability is a
cluster of interrelated attributes that is measurable or observable or
both. A capability under CTMS is analogous to a grouping of
competencies.\117\ Interrelated attributes under CTMS include
knowledge, skills, abilities, behaviors, and other characteristics.
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\117\ OPM defines a competency as ``a measurable pattern of
knowledge, skills, abilities, behaviors and other characteristics
that an individual needs in order to perform work roles or
occupational functions successfully.'' Office of Personnel
Management, Delegated Examining Operations Handbook: A Guide for
Federal Agency Examining Offices (June 2019), page 2-13. Examples of
competencies include oral communication, flexibility, customer
service, and leadership. Id.
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DHS must create its own qualifications for its unique cybersecurity
mission because the field of cybersecurity currently lacks formal,
universal standards for cybersecurity skills on which to base CTMS
qualifications. As discussed previously in III.B.1 of this document,
cybersecurity skills continue to change at a staggering pace because of
the ever-evolving nature of cybersecurity work. This rapid change
hampers professionalization in the field of cybersecurity, including
the establishment of universal standards for cybersecurity skills.\118\
Moreover, DHS's unique cybersecurity mission requires specialized
skills and specific combinations of those skills. Therefore, DHS needs
to identify, validate, and maintain its own set of qualifications
necessary to execute the DHS cybersecurity mission, including the
unique functions and responsibilities of DHS organizations.
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\118\ See National Research Council, Professionalizing the
Nation's Cybersecurity Workforce?: Criteria for Decision-Making, The
National Academies Press (2013) available at https://doi.org/10.17226/18446 (last visited May 25, 2021) (examining workforce
requirements for cybersecurity and the segments and job functions in
which professionalization is most needed; the role of assessment
tools, certification, licensing, and other means for assessing and
enhancing professionalization; and emerging approaches, such as
performance-based measure).
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DHS identifies CTMS qualifications as part of the strategic talent
planning process. See Sec. Sec. 158.401 and 158.402. On an ongoing
basis, DHS identifies the functions that execute the DHS cybersecurity
mission, the cybersecurity work required to perform, manage, or
supervise those functions, and the qualifications necessary to perform
that work. DHS comprehensively identifies DHS cybersecurity work, and
identifies a set of qualifications necessary to perform that work. This
comprehensive set of CTMS qualifications reflects the collective
expertise necessary to execute the DHS cybersecurity mission.
With the assistance of both industrial and organizational
psychologists and DHS cybersecurity experts, DHS identifies, documents,
and verifies those qualifications. To ensure CTMS qualifications are
appropriately work-related, DHS identifies CTMS qualifications in
accordance with appropriate legal and professional guidelines, such as
the Uniform Guidelines on Employee Selection Procedures \119\ and the
Principles for the Validation and Use of Personnel Selection
Procedures.\120\
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\119\ 29 CFR part 1607 and U.S. Equal Employment Opportunity
Commission, Questions and Answers to Clarify and Provide a Common
Interpretation of the Uniform Guidelines on Employee Selection
Procedures, EEOC-NVTA-1979-1 (Mar. 1, 1979).
\120\ American Psychological Association, Principles for the
Validation and Use of Personnel Selection Procedures, (5th Ed. Aug.
2018), available at https://www.apa.org/ed/accreditation/about/policies/personnel-selection-procedures.pdf (last visited May 25,
2021).
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DHS organizes CTMS qualifications into broad categories defined
primarily in terms of capabilities, such as general professional
capabilities, cybersecurity technical capabilities, and leadership
capabilities. Such categories of capabilities are further defined using
proficiency standards or scales. Professional capabilities, such as
critical analysis, customer orientation, and effective communication,
are required in some capacity for all DHS cybersecurity work.
Cybersecurity technical capabilities, such as cybersecurity
engineering, digital forensics, and vulnerability assessment, are
required in different combinations and at different proficiency levels
for specific categories of cybersecurity work. For example, individuals
performing entry-level cybersecurity work often require very little
proficiency in technical capabilities to be successful, and those
performing expert-level, highly-specialized work often require a high
level of proficiency in one or more technical capabilities to be
successful. Cybersecurity work related to leading people and
organizations requires leadership capabilities, such as leading change,
leading organizations, and resource management, and DHS cybersecurity
senior leadership requires the highest levels of proficiency in such
capabilities.
CTMS qualifications derived from the dynamic DHS cybersecurity
mission are the core of CTMS and its elements. DHS determines which
individuals to recruit and retain based on the specific CTMS
qualifications they are likely to possess and have been demonstrated to
possess. CTMS qualifications are a key component of the work valuation
system, the talent acquisition system, the compensation system, the
performance management program, and the career development program,
each discussed subsequently in this document.
DHS is using qualifications as the core of CTMS and may do so under
the Secretary's authority and discretion for designating and
establishing qualified positions and the exemption from laws relating
to classification in 6 U.S.C. 658.
(c) Other Definitions
In subpart A, Sec. 158.104 defines terms used throughout part 158,
several of which incorporate new concepts and are specific to CTMS,
like qualified positions and qualifications, discussed
[[Page 47859]]
previously. Other new terms and definitions in Sec. 158.104 include
the following:
``Assignment'' means a description of a specific subset of
DHS cybersecurity work and a specific subset of CTMS qualifications
necessary to perform that work, the combination of which is associable
with a qualified position. This conceptual definition of assignment
connects the performance of particular work to broader qualifications
and cybersecurity work of a qualified position. DHS also uses the term
assignment in the administration and operation of CTMS to refer to and
document the details of a DHS-CS employee's current role related to the
cybersecurity mission. A DHS-CS employee's assignment is a description
of a specific subset of DHS-CS cybersecurity work, a specific subset of
the employee's CTMS qualifications, and how the employee is expected to
apply those qualifications to perform that work. Assignments are
discussed further in IV.A.2 of this document.
``CTMB'' means the Cybersecurity Talent Management Board
that assists the Secretary, or the Secretary's designee, in
administering CTMS and managing the DHS-CS. The Secretary or the
Secretary's designee appoints officials to serve on the CTMB and
designates the CTMB's Co-Chairs.
``Cybersecurity work'' means activity involving mental or
physical effort, or both, to achieve results relating to cybersecurity.
``DHS-CS cybersecurity work'' means the cybersecurity work
identified based on the DHS cybersecurity mission.
``DHS cybersecurity mission'' encompasses all
responsibilities of DHS relating to cybersecurity and is fully
described in Sec. 158.201.
``Mission impact'' means a DHS-CS employee's influence on
execution of the DHS cybersecurity mission through application of the
employee's CTMS qualifications to successfully and proficiently perform
DHS-CS cybersecurity work. Mission impact is a factor in DHS-CS
employee compensation, performance management, and development. Mission
impact is discussed further as part of the compensation system, the
performance management program, and the career development program in
IV.E and IV.G, of this document respectively.
``Anticipated mission impact'' means the influence DHS
anticipates an individual to have on execution of the DHS cybersecurity
mission based on the individual's CTMS qualifications and application
of those qualifications to successfully and proficiently perform DHS-CS
cybersecurity work. Anticipated mission impact of an individual
selected for appointment to a qualified position can be a factor in
providing compensation for that individual, including initial salary
and any recognition payment or recognition time-off offered as a
signing bonus. Anticipated mission impact is discussed further as part
of the compensation system in IV.E of this document.
``Mission-related requirements'' means characteristics of
an individual's expertise or characteristics of cybersecurity work, or
both (including cybersecurity talent market-related information), that
are (1) associated with successful execution of the DHS cybersecurity
mission, and that are (2) determined by officials with appropriate
decision-making authority. Mission-related requirements are relevant
for addressing emerging or urgent mission circumstances that are not
yet reflected in the set of CTMS qualifications, or that may be
temporary in nature, but need to be addressed nonetheless. Mission-
related requirements are a factor in salary setting and DHS-CS employee
recognition under the compensation system, matching DHS-CS employees
with assignments under the deployment program, and guiding DHS-CS
employee career progression under the career development program, all
discussed subsequently.
``Strategic talent priorities'' means the priorities for
CTMS and the DHS-CS set by the Secretary or the Secretary's designee on
an ongoing basis under Sec. 158.304. The Secretary or the Secretary's
designee uses strategic talent priorities for administering CTMS and
managing the DHS-CS. Strategic talent priorities inform strategic
recruiting under the talent acquisition system, salary setting and DHS-
CS employee recognition under the compensation system, matching DHS-CS
employees with assignments under the deployment program, and guiding
DHS-CS employee career progression under the career development
program, all discussed subsequently.
Other terms used throughout part 158 that are not necessarily new,
but are defined in Sec. 158.104 specific to CTMS include the
following:
``Additional compensation'' is several types of CTMS-
specific compensation and is described in Sec. 158.603(c) as
recognition, other special pay, and other types of compensation such as
leave and benefits. Note that benefits for Federal employees provided
under Title 5, such as leave and retirement, are usually treated as
separate from Federal pay or compensation, but under 6 U.S.C. 658
benefits are explicitly considered compensation.\121\
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\121\ 6 U.S.C. 658(b)(3)(A) (``compensation (in addition to
basic pay), including benefits, incentives, and allowances'').
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Appointment types under CTMS are: ``renewable
appointment,'' ``continuing appointment,'' and ``advisory
appointment.'' Each type of appointment is analogous to a type of
appointment under Title 5 and is discussed further in IV.C.3. of this
document.
``Cybersecurity talent market'' means the availability, in
terms of supply and demand, of talent relating to cybersecurity and
employment relating to cybersecurity, including at other Federal
agencies such as DOD. DHS analyzes the cybersecurity talent market to
identify and monitor employment trends and to identify leading
strategies for recruiting and retaining cybersecurity talent. That
analysis is part of the strategic talent planning process and informs
the compensation system, discussed subsequently.
``Salary'' means an annual rate of pay under CTMS and is
basic pay for purposes under Title 5. Note that instead of the term
basic pay, the term salary is used to describe a DHS-CS employee's
annual rate of pay.
``Talent management'' means a systematic approach to
linking employees to mission and organizational goals through
intentional strategies and practices for hiring, compensating, and
developing employees. DHS purposefully uses the term talent management
for CTMS because of its focus on people and its association with
integrated, strategic approaches to recruitment and retention of talent
in alignment with organizational goals. This contrasts with traditional
Federal terms, such as human resources and personnel management, which
are often characterized by tactical execution of administrative
processes and compliance activities. Note, however, that a ``talent
management action'' under CTMS has the same meaning as ``personnel
action'' under Title 5.
``Work level'' means a grouping of CTMS qualifications and
DHS-CS cybersecurity work with sufficiently similar characteristics to
warrant similar treatment in talent management under CTMS. For example,
similar characteristics may include level or type of technical
expertise or a level or type of leadership responsibility. Work level
is one of the work and career structures established by the new work
valuation system, and is discussed further in IV.C.3 of this document.
[[Page 47860]]
``Work valuation'' means a methodology through which an
organization defines and evaluates the value of work and the value of
individuals capable of performing that work. Under CTMS, DHS uses the
new person-focused work valuation system instead of the GS or another
traditional Federal position classification system based on 5 U.S.C.
Chapter 51.
Other terms used throughout part 158 with definitions set forth in
Sec. 158.104 include ``DHS-CS employee,'' and ``DHS-CS advisory
appointee,'' and other terms already defined in law, such as
``cybersecurity risk,'' ``cybersecurity threat,'' and ``functions,''
which are defined in Title 6 of the U.S. Code. An additional term
defined in Sec. 158.104 is ``CTMS policy,'' which is internal DHS
policy, and means DHS's decisions implementing and operationalizing the
regulations in part 158, and includes directives, instructions, and
operating guidance and procedures for DHS employees.
(d) Authority & Policy Framework
In subpart A, Sec. 158.102 states that 6 U.S.C. 658 is the
authority for part 158 and CTMS and explains the scope of that
authority. As discussed in III.C of this document, DHS has broad
authority to design and establish CTMS as a new approach to talent
management and establish the resulting DHS-CS. By statute, the
Secretary's authority ``applies without regard to the provisions of any
other law relating to the appointment, number, classification, or
compensation of employees.'' See 6 U.S.C. 658(b)(1)(B). Consistent with
this authority, Sec. 158.102 explains that part 158 supersedes all
other provisions of law and policy relating to appointment, number,
classification, or compensation of employees that conflict with 6
U.S.C. 658, the regulations in part 158, or CTMS policy implementing
part 158. Also, subparts C, D, E, and F each contain a section that
lists specific provisions of other laws that, under the exemption in 6
U.S.C. 658 regarding appointment, number, classification, and
compensation of employees, are inapplicable under CTMS. See Sec. Sec.
158.405, 158.502, 158.605, and 158.709.
Section 158.102 also explains that some compensation under CTMS is
provided in accordance with other provisions of law, including OPM
regulations, but that CTMS compensation is only authorized under part
158. Additionally, Sec. 158.102 explains that when some CTMS
compensation is provided in accordance with relevant provisions of
other laws, including OPM regulations, DHS follows those other
provisions to the extent compatible with talent management under CTMS.
To maintain the integrity of CTMS, DHS may need to modify application
of relevant provisions of other laws regarding compensation for the
DHS-CS. This is because some of the terms, or concepts, used in those
other relevant provisions are not used under CTMS, and DHS may have to
extrapolate between those terms and concepts and CTMS terms and
concepts to apply those other provisions.
The regulations in part 158 set up the policy framework for CTMS
and the DHS-CS, and DHS administers CTMS and manages the DHS-CS under
part 158 and CTMS policy implementing part 158, which is internal DHS
policy. See Sec. 158.101. If DHS determines additional provisions of
other laws or policy concerning Federal employment apply under CTMS,
DHS will implement those other laws or policy in CTMS policy. When any
talent management situation or emerging issue regarding the DHS-CS
needs clarification, DHS will do so in CTMS policy.
Section 158.102 also includes a preservation of authority clause to
ensure it is clear that nothing in part 158 shall be deemed or
construed to limit the authority under 6 U.S.C. 658 and any further
implementation or interpretation of that authority. If DHS determines
any such implementation or interpretation necessitates a change in part
158, DHS will issue an amendment to this rule.
2. Subpart B--DHS Cybersecurity Service
Subpart B, DHS Cybersecurity Service, contains regulations
addressing the DHS cybersecurity mission and the DHS-CS. Regulations in
subpart B also explain the main aspects of employment for DHS-CS
employees, including assignments in the DHS-CS. This subpart provides
an overview of CTMS from an applicant or DHS-CS employee perspective
and provides references to other rule sections for more information.
This subpart explains generally the mission-driven, person-focused,
market-sensitive approach that DHS is establishing under the authority
and exemptions in 6 U.S.C. 658.
(a) Mission
The DHS cybersecurity mission drives talent management under CTMS
and Sec. 158.201 describes the DHS cybersecurity mission for purposes
of CTMS. This mission encompasses all responsibilities of DHS relating
to cybersecurity. It is dynamic to keep pace with the evolving
cybersecurity risks and cybersecurity threats facing the Nation and to
adapt to any changes in DHS's cybersecurity responsibilities.
As part of establishing CTMS, DHS is also establishing the DHS-CS,
the purpose of which is to enhance the cybersecurity of the Nation
through the most effective execution of the DHS cybersecurity mission.
See Sec. 158.202. The DHS-CS comprises all qualified positions
designated and established under CTMS and all employees serving in
qualified positions.
(b) Qualified Positions
DHS designates qualified positions under the deployment program,
described in Sec. 158.701. See Sec. 158.203. Designating qualified
positions is part of determining whether DHS needs to use CTMS to
recruit and retain individuals possessing CTMS qualifications. The
process of designating qualified positions is set out in Sec. 158.702.
This process, and the deployment program generally, are discussed
further in IV.F of this document.
DHS establishes qualified positions under the talent acquisition
system, described in Sec. 158.501, by appointing an individual to a
previously designated qualified position. See Sec. 158.203. DHS
establishes and fills qualified positions concurrently. The talent
acquisition system, and the processes for assessing, selecting, and
appointing an individual, are discussed further in IV.D of this
document.
(c) DHS-CS Employees
All employees serving in qualified positions are DHS-CS employees
and all DHS-CS employees are in the excepted service. DHS hires,
compensates, and develops DHS-CS employees using CTMS. See Sec.
158.204. DHS manages the DHS-CS based on DHS-CS core values of
expertise, innovation, and adaptability, set out in Sec. 158.305 and
discussed subsequently.
DHS-CS employees execute the DHS-CS cybersecurity mission by
applying their CTMS qualifications to perform the DHS-CS cybersecurity
work of their assignments. See Sec. 158.204. Successful and proficient
performance of that work results in mission impact, which is defined in
Sec. 158.104 as the employee's influence on the DHS cybersecurity
mission. DHS reviews and recognizes a DHS-CS employee based on the
employee's mission impact. See Sec. Sec. 158.204, 158.630, and
158.805.
DHS provides compensation to DHS-CS employees in alignment with the
CTMS compensation strategy, and compensation under CTMS includes both
salary and additional
[[Page 47861]]
compensation. See Sec. Sec. 158.204, 158.601, and 158.603. Also, DHS
strategically and proactively recruits individuals for employment in
the DHS-CS, and DHS guides the development and career progression of
DHS-CS employees. See Sec. Sec. 158.204, 158.510, and 158.803.
(d) DHS-CS Assignments
As explained in Sec. 158.205, each DHS-CS employee has one or more
assignments during the employee's service in the DHS-CS.
Each DHS-CS employee receive an initial assignment upon appointment
to a qualified position. See Sec. Sec. 158.205 and 158.703. A DHS-CS
employee may later receive a subsequent assignment, but a DHS-CS
employee may only have one assignment at a time.
DHS designates and staffs assignments under the deployment program.
See Sec. Sec. 158.205 and 158.703. The deployment program, and the
processes for designating and staffing assignments, is discussed
further in IV.F of this document.
B. CTMS and DHS-CS Leadership: Subpart C
Subpart C, Leadership, sets up the leadership structure for
administering CTMS, including the Cybersecurity Talent Management Board
(CTMB). Subpart C also contains regulations addressing the influence of
the merit system principles on CTMS and the DHS-CS, and establishing
strategic talent priorities and DHS-CS core values.
1. Leaders
As stated in Sec. 158.301, the Secretary, or the Secretary's
designee, is responsible for administering CTMS and managing the DHS-
CS. This includes establishing and maintaining CTMS policy implementing
part 158.
The Cybersecurity Talent Management Board (CTMB) assists the
Secretary, or the Secretary's designee, in administering CTMS and
managing the DHS-CS. See Sec. 158.301. The CTMB comprises officials
representing DHS organizations involved in executing the DHS
cybersecurity mission and officials responsible for developing and
administering talent management policy. See Sec. 158.302. The
Secretary or the Secretary's designee appoints officials to serve on
the CTMB and designates the CTMB's Co-Chairs.
The CTMB shapes and monitors CTMS and the DHS-CS. The CTMB
periodically evaluates whether CTMS is recruiting and retaining
individuals with the qualifications necessary to execute the DHS
cybersecurity mission. See Sec. 158.302. The CTMB may use information
from this evaluation to recommend, or make, adjustments to CTMS, which
may include improvements to the administration or operation of CTMS
elements and practices. The CTMB may designate an independent evaluator
to conduct an evaluation, as necessary.
2. Principles, Priorities, and Core Values
The Secretary or Secretary's designee, with assistance from the
CTMB, administers CTMS and manages the DHS-CS based on: Talent
management principles that address merit system principles, advancing
equity, and equal employment opportunity; strategic talent priorities
for CTMS and the DHS-CS; and DHS-CS core values. These principles,
priorities, and core values are set out in Sec. Sec. 158.303 through
158.305.
As stated in Sec. 158.303, CTMS is designed and administered based
on the core Federal talent management principles of merit and fairness
embodied by the merit system principles in 5 U.S.C. 2301(b). While CTMS
is an innovative approach to talent management, featuring new,
specialized practices not present in many Federal civilian personnel
systems, CTMS remains a merit system in which Federal employment is
based on merit and individual competence instead of political
affiliation, personal relationships, or other non-merit factors. CTMS
features elements and practices for acknowledging individuals'
qualifications and ensuring individuals are treated equitably based on
merit and for ensuring DHS-CS employees are managed in the public
interest. Additionally, the prohibited personnel practices in 5 U.S.C.
2302(b) apply to CTMS and the individuals covered by CTMS.
In addition to the influence of the merit system principles and
application of prohibited personnel practices, CTMS is designed, and
administered, and DHS manages the DHS-CS, in accordance with applicable
anti-discrimination laws and policies. See Sec. 158.303. Talent
management actions under CTMS that materially affect a term or
condition of employment must be free from discrimination. See Sec.
158.303. Through such commitment to anti-discrimination, DHS aims to
reinforce the design of CTMS as a merit system, in which all
individuals, including those belonging to underserved communities that
have been denied consistent and systematic fair, just, and impartial
treatment in cybersecurity and Federal employment historically, are
treated equitably and without discrimination. In alignment with
Executive Order 13985, underserved communities for which DHS seeks to
ensure equal employment opportunity include Black, Latino, and
Indigenous and Native American persons, Asian Americans and Pacific
Islanders and other persons of color; members of religious minorities;
lesbian, gay, bisexual, transgender, and queer (LGBTQ+) persons;
persons with disabilities; persons who live in rural areas; and persons
otherwise adversely affected by persistent poverty or inequality.
Under Sec. 158.304, the Secretary or Secretary's designee, with
assistance from the CTMB, sets strategic talent priorities for CTMS and
the DHS-CS on an ongoing basis using a variety of information.
Importantly, information from strategic talent planning is used to set
strategic talent management priorities. As discussed subsequently, this
is information that is generated by the strategic talent planning
process and its underlying processes, as well as information from
administering CTMS. Setting strategic talent priorities based on the
types of information aggregated in strategic talent planning ensures
that such priorities reflect the latest strategic information about the
DHS cybersecurity mission, cybersecurity work, and the cybersecurity
talent market. Other information used in setting strategic talent
priorities is information from DHS financial planning and strategic
planning, and DHS priorities outside of CTMS and the DHS-CS. Strategic
talent priorities are reviewed and updated to ensure that CTMS is
administered and the DHS-CS is managed in a manner that addresses the
latest DHS priorities, which may include making adjustments based on
new mission or market demands.
Under part 158, strategic talent priorities inform overall
administration of CTMS and management of the DHS-CS, as well as
specifically influence strategic recruiting under the CTMS talent
acquisition system, DHS-CS employee recognition under the CTMS
compensation system, matching DHS-CS employees with assignments under
the CTMS deployment program, and guiding DHS-CS employee career
progression under the CTMS career development program.
The Secretary or Secretary's designee, with assistance from the
CTMB, also administers CTMS and manages the DHS-CS using DHS-CS core
values. As set out in Sec. 158.305, those values are expertise,
innovation, and adaptability. These core values reinforce the design
and purpose of CTMS: Adapting to changes in cybersecurity work, the
cybersecurity talent market, and the
[[Page 47862]]
DHS cybersecurity mission. DHS-CS employees require expertise,
innovation, and adaptability to keep pace with the ever-evolving nature
of cybersecurity work and DHS's dynamic cybersecurity mission, as well
as to remain competitive in the talent market. These core values, and
managing the DHS-CS using them, also underscores the expectation of
continual learning for DHS-CS employees. DHS-CS core values influence
the CTMS performance management program and CTMS career development
program, and are embedded in the CTMS compensation strategy, all
discussed subsequently.
C. Strategic Talent Planning: Subpart D
Subpart D, Strategic Talent Planning, contains regulations
addressing how DHS establishes and administers a strategic talent
planning process to enable CTMS to adapt to changes in cybersecurity
work, the cybersecurity talent market, and the DHS cybersecurity
mission. The strategic talent planning process comprises several
processes and systems by which DHS identifies CTMS qualifications and
DHS-CS cybersecurity work, analyzes the cybersecurity talent market,
and describes and values DHS-CS cybersecurity work, while also
aggregating information to inform the overall administration of CTMS
and management of the DHS-CS. See Sec. 158.401.
The design of CTMS, especially the strategic talent planning
process, implements the Secretary's broad discretion to determine how
to create and use qualified positions, discussed previously in III.A.1
of this document.
1. DHS-CS Cybersecurity Work & CTMS Qualifications Identification
As discussed previously, CTMS qualifications are the core of CTMS,
and CTMS qualifications are derived from the DHS cybersecurity mission.
DHS identifies CTMS qualifications as part of the strategic talent
planning process. As part of the strategic talent planning process, DHS
identifies the functions that execute the DHS cybersecurity mission, as
well as the cybersecurity work required to perform, manage, or
supervise those functions, and the set of qualifications necessary to
perform that work. See Sec. 158.301. On an ongoing basis, DHS updates
this comprehensive set of CTMS qualifications to ensure it reflects the
dynamic DHS cybersecurity mission and the collective expertise
necessary to execute that mission.
Also, as discussed previously, DHS identifies CTMS qualifications
in accordance with applicable legal and professional guidelines
governing the assessment and selection of individuals. Doing so ensures
the qualifications identified are appropriately work-related and do not
disproportionately or improperly impact protected individuals or
groups.
2. CTMS Talent Market Analysis
As part of the strategic talent planning process, DHS conducts
analysis of the cybersecurity talent market on an ongoing basis. See
Sec. 158.403. The analysis includes reviewing data on cybersecurity
talent across the Nation such as aggregated salary and total
compensation data in compensation surveys.\122\ As part of market
analysis, DHS makes compensation comparisons and considers salaries as
well as types of additional compensation, including bonuses and
benefits. By examining total compensation or total rewards, which may
also include non-monetary, work-life balance benefits, DHS is better
able to more accurately compare features of the CTMS compensation
system with features of the total compensation or total rewards
programs of other cybersecurity employers, including private sector
organizations.
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\122\ See e.g., Pearl Meyer, 2020 Cyber Security Salary Survey,
available for purchase at https://www.pearlmeyer.com/knowledge-share/research-report/2020-cyber-security-compensation-survey (last
visited May 25, 2021).
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DHS conducts analysis of the cybersecurity talent market using
generally recognized compensation principles and practices. See Sec.
158.403. Such principles and practices include fundamental concepts and
analytical methods often integrated into formal courses of study for
compensation practitioners.\123\ Such principles and practices are also
outlined in publications, intended to support compensation
practitioners when establishing a compensation philosophy, conducting
competitive compensation analysis, and developing compensation
structures and processes.\124\ Using these compensation principles and
practices ensures the design and administration of compensation
addresses DHS organizational goals and complies with legal
requirements, including those prohibiting discrimination in
compensation.
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\123\ See e.g., eCornell, Compensation Studies Cornell
Certificate Program, available at https://ecornell.cornell.edu/certificates/human-resources/compensation-studies/ (last visited May
25, 2021); SHRM, Foundations of Compensation, available at https://store.shrm.org/Foundations-of-Compensation (last visited May 25,
2021); and WorldatWork, Certified Compensation Professional,
available at https://www.worldatwork.org/certification/Certified-compensation-professional (last visited May 25, 2021).
\124\ See e.g., Barry Gerhart and Jerry Newman, Compensation
(13th Ed. 2020) available for purchase at https://www.mheducation.com/highered/product/compensation-gerhart-newman/M9781260043723.toc.html (last visited May 25, 2021); WorldatWork,
The WorldatWork Handbook of Total Rewards: A Comprehensive Guide to
Compensation, Benefits, HR & Employee Engagement (2nd Ed.) available
for purchase at https://www.worldatwork.org/product/physical/the-worldatwork-handbook-of-total-rewards (last visited May 25, 2021).
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DHS uses analysis of the cybersecurity talent market to identify
and monitor trends in both employment for and availability of talent
related to cybersecurity, including variations in the cost of talent or
the cost of living in local cybersecurity talent markets, or both.
Local cybersecurity talent markets are described in Sec. 158.612 as
the cybersecurity talent markets in geographic areas defined by DHS and
are discussed further in IV.D. of this document. DHS analyzes average
cost of talent because such cost can vary significantly in different
local cybersecurity talent markets. Similarly, variations in cost of
living can significantly influence how organizations compensate
cybersecurity employees in specific locations. DHS also uses analysis
of the cybersecurity talent market to identify leading strategies for
recruiting and retaining talent related to cybersecurity.
3. CTMS Work Valuation & Work and Career Structures
As part of the strategic talent planning process, DHS uses a new,
DHS-specific work valuation system to define and value DHS-CS
cybersecurity work, with a focus on qualifications necessary to perform
that work. See Sec. 158.404. As discussed previously in III.A.1 of
this document, under the authority in 6 U.S.C. 658 DHS may create a new
person-focused work valuation system. Although DHS is exempt from
traditional Federal position classification under 6 U.S.C. 658,
including the GS position classification system, DHS is choosing to use
a work valuation system to establish structures to facilitate
systematic management of DHS-CS employees and address internal equity.
Like traditional Federal position classification that influences many
aspects of talent management, especially compensation, the CTMS work
valuation system also influences many aspects of talent management
under CTMS.
Like traditional Federal position classification, the CTMS work
valuation system is a method of work valuation, but features different
core concepts and different practices. The GS position classification
system is a system of ``job
[[Page 47863]]
evaluation'' that describes work by delineating it into jobs defined in
terms of duties, responsibilities, and qualification requirements of a
position.\125\ As explained previously in III.B.2 of this document, the
GS position classification system accounts only minimally for the
individual or the individual's skills, including how the individual's
skills may influence the performance of work. Although GS position
classification is based on duties, responsibilities, and qualification
requirements of positions,\126\ ``the framers of the [GS] job
evaluation system meant the qualifications requirements inherent in the
work--an abstract concept--not the qualifications of specific
individuals.'' \127\
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\125\ National Academy of Public Administration, Modernizing
Federal Classification: An Opportunity for Excellence (July 1991),
xix-xx.
\126\ 5 U.S.C. 5101(2).
\127\ Joseph W. Howe, History of the General Schedule
Classification System, prepared for the U.S. Office of Personnel
Management, Final Report FR-02-25 (Mar. 2002), 20.
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The CTMS work valuation system is a system of ``work evaluation''
\128\ that describes cybersecurity work in more flexible, holistic
terms with a focus on the qualifications of individuals necessary to
perform DHS cybersecurity work. Creating a new system of work
valuation, instead of ``job evaluation,'' recognizes that ``jobs have
become more flexible, dependent upon the job incumbent,'' and that work
evaluation or valuation ``is a more encompassing concept than job
evaluation and better captures contributions of the job, person, or
team.'' \129\
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\128\ Id.
\129\ Robert L. Heneman, Ph.D., Work Evaluation: Strategic
Issues and Alternative Methods, prepared for the U.S. Office of
Personnel Management, FR-00-20 (July 2000, Revised Feb. 2002), 2.
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The CTMS work valuation system is a person-focused work valuation
system that DHS uses to determine the value or worth of a DHS-CS
employee to DHS based on the employee's qualifications.\130\ This is in
contrast to traditional Federal position classification or work
valuation methods that determine the value or worth of positions based
on the duties and responsibilities of the positions, regardless of the
person in the position.\131\ The design of the CTMS work valuation
system reflects that the DHS cybersecurity mission is dynamic,
cybersecurity work is constantly evolving, and that individuals and
their qualifications significantly influence how cybersecurity work is
performed. Especially for cybersecurity work, an individual can
dramatically alter how work is performed, including the tactics,
techniques, and procedures brought to bear and the quality and quantity
of outcomes produced.
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\130\ The new work valuation system is similar to a rank-in-
person work valuation system, which determines the value or worth of
an employee to the organization based on the employee's skills. See
U.S. Government Accounting Office, Description of Selected Systems
for Classifying Federal Civilian Positions and Personnel, GGD-84-90
(July 1984), 5 (``Assigning Value to Persons''). The new work
valuation system, however, does not maintain a seniority-based or
time-based promotion process like rank-in-person systems. See Harry
J. Thie et al, Future Career Management Systems for U.S. Military
Officers, Santa Monica, CA: RAND Corporation, MR-470-OSD, prepared
for the Office of the Secretary of Defense (1994), 89-95 available
at https://www.rand.org/pubs/monograph_reports/MR470.html (last
visited May 25, 2021).
\131\ U.S. Government Accounting Office, Description of Selected
Systems for Classifying Federal Civilian Positions and Personnel,
GGD-84-90 (July 1984), 1-2 (``The GS and FWS [Federal Wage Schedule]
are rank-in-position methods that assess the value of the job rather
than the job occupant'') and 5 (``Assigning Value to Positions'').
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The CTMS work valuation system is based on the set of CTMS
qualifications and the DHS-CS cybersecurity work identified in the
strategic talent planning process. See Sec. 158.404. The work
valuation system recognizes that critical qualifications come and go
with individuals, not positions, and that individuals and the
qualifications they possess significantly influence how cybersecurity
work is performed. Individuals, through their respective and collective
qualifications, influence how problems are tackled, how long
initiatives take, and how effective new solutions are.
DHS uses the work valuation system to establish work and career
structures, such as work levels, titles, ranks, and specializations.
See Sec. 158.404. DHS establishes such work and career structures by
grouping and valuing qualifications and categories of qualifications
based on criticality to the DHS cybersecurity mission. DHS uses these
CTMS work and career structures instead of GS classes and grades and
other traditional Federal position classification job structures. Much
like the classes and grades established by the GS position
classification system, the work and career structures support a variety
of aspects of systematic talent management under CTMS.
DHS uses the work and career structures to organize other elements
of CTMS and to ensure those other elements maintain a consistent focus
on qualifications. DHS uses such work and career structures to describe
and categorize DHS-CS employees, qualified positions, assignments, and
cybersecurity work. For example, the description of an individual's
qualified position includes a work level, such as early-career or
executive, and a title, such as Cybersecurity Specialist or
Cybersecurity Executive.
Importantly, DHS uses the work and career structures as part of the
CTMS compensation system, discussed subsequently, in determining
compensation for individuals in qualified positions with a focus on
CTMS qualifications. For example, in setting an individual's initial
salary, DHS considers applicable work and career structures, including
the individual's work level. See Sec. 158.620.
DHS may also use the work and career structures for budget and
fiscal purposes related to administering CTMS and managing the DHS-CS.
See Sec. 158.404. This is analogous to how agencies use GS grades and
occupations to inform resource planning processes.
As discussed in III.A.1 of this document, the authority in 6 U.S.C.
658 to create a new talent management system is exempt from the GS
position classification system, and other work valuation systems
relying on position classification based on 5 U.S.C. Chapter 51. As
such, Sec. 158.405 states that Chapter 51 and related laws do not
apply under CTMS or to the DHS-CS or to talent management under CTMS.
4. Informing CTMS Administration and DHS-CS Management
DHS aggregates information generated in the processes and systems
that are part of the strategic talent planning process in order to
inform all other CTMS elements. See Sec. 158.401. Incorporating this
information from the strategic talent planning process into the other
CTMS elements ensures that those elements reflect a strategic
understanding of internal issues affecting employees in the DHS-CS as
well as external issues affecting cybersecurity employment generally in
the cybersecurity talent market.
For example, information about CTMS qualifications from the
strategic talent planning process ensures that the talent acquisition
system remains focused on the qualifications most critical for the DHS
cybersecurity mission, including newly-identified qualifications that
DHS had not recruited and assessed talent for previously. Also,
information from analysis of the cybersecurity talent market ensures
other elements of CTMS reflect an understanding of the cybersecurity
talent market and serve to enable DHS to better recruit and retain top
cybersecurity talent for employment in the DHS-CS.
As part of strategic talent planning, DHS also aggregates
information from administering CTMS under the other
[[Page 47864]]
CTMS elements and uses that information to inform CTMS elements. See
Sec. 158.401. Using information from administering CTMS in this manner
ensures that the interrelated elements of CTMS function together as a
complete talent management system. A common, comprehensive set of
information about the current state of the administration of CTMS
informs each respective element of CTMS, resulting in coherent,
intentional practices for hiring, compensating, and developing DHS-CS
employees. For example, information from the CTMS deployment program
might indicate that the set of CTMS qualifications does not effectively
capture the expertise required for some DHS cybersecurity work, and DHS
needs to update the set of qualification under the strategic talent
planning process. Similarly, information from the deployment program,
such as assignments that are difficult to staff, can assist DHS in
measuring the effectiveness of the talent acquisition system.
D. Acquiring Talent: Subpart E
Subpart E, Acquiring Talent, contains regulations establishing the
CTMS talent acquisition system, which involves strategic and proactive
recruitment, qualifications assessment, and selection and appointment.
The talent acquisition system aligns with DHS's design for creating and
using qualified positions under CTMS and implements the appointment
authority in 6 U.S.C. 658, discussed previously in III.A.2 of this
document. Under that authority, and the exemptions from laws relating
to appointment, number, and classification, DHS is creating a new
talent acquisition system with a focus on CTMS qualifications, finding
individuals who likely possess those qualifications, and hiring those
who demonstrate that they do.
1. CTMS Talent Acquisition System
The CTMS talent acquisition system provides DHS with an enhanced
ability to identify and hire individuals with CTMS qualifications. The
talent acquisition system comprises strategies, programs, and processes
for strategically recruiting individuals, assessing qualifications of
individuals, and considering and selecting individuals for employment
in the DHS-CS and appointment to qualified positions. See Sec.
158.501. The talent acquisition system reflects an emphasis on seeking
out individuals likely to possess CTMS qualifications and then
verifying individuals' qualifications before matching those individuals
with DHS-CS cybersecurity work and finalizing selections.
DHS establishes and administers the talent acquisition system in
accordance with applicable legal and professional guidelines governing
the assessment and selection of individuals. See Sec. 158.501. Those
guidelines are the same guidelines DHS uses for ensuring qualifications
identified as part of the strategic talent planning process are work-
related, as discussed previously. Legal and professional guidelines
used for the talent acquisition system also include the Standards for
Educational and Psychological Testing.\132\ Such guidelines provide
frameworks for proper design and use of selection procedures based on
established scientific findings and generally recognized professional
practices. Such guidelines also contain principles to assist employers
in complying with Federal laws prohibiting discriminatory employment
practices.
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\132\ American Psychological Association, The Standards for
Educational and Psychological Testing, (2014 Ed.), available for
purchase at https://www.apa.org/science/programs/testing/standards
(last visited May 25, 2021).
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Recruiting, assessing, selecting, and appointing talent under the
talent acquisition system represents a shift from existing Federal
hiring practices for other Federal civil service positions. As
discussed previously in III.A.2 of this document, the authority in 6
U.S.C. 658 to create a new talent acquisition system is exempt from any
other provision of law relating to appointment of employees, including
veterans' preference requirements, as well as other provisions of law
relating to number or classification of employees. As such, Sec.
158.502 lists existing laws relating to the process of appointing an
individual that do not apply under CTMS, to the DHS-CS, or to talent
management under CTMS.
2. Strategic Recruitment
Under the CTMS talent acquisition system, DHS strategically and
proactively recruits individuals likely to possess CTMS qualifications.
See Sec. Sec. 158.510 and 158.511. DHS develops strategies for
publicly communicating about the DHS cybersecurity mission and the DHS-
CS, and for recruiting individuals for employment in the DHS-CS.
DHS develops and updates CTMS recruitment strategies based on CTMS
qualifications, DHS-CS cybersecurity work, and strategic talent
priorities. Developing and updating recruitment strategies in this
manner ensures CTMS recruitment efforts remain effective in supporting
execution of the dynamic DHS cybersecurity mission and furthering DHS
goals, such as the advancement of diversity and inclusion in DHS's
cybersecurity workforce.
In developing and implementing CTMS recruitment strategies, DHS may
collaborate with other organizations and groups, including other
Federal agencies, institutions of higher education, and national
organizations such as veterans service organizations. DHS recognizes
that such partnerships can be critical to identifying individuals with
desired qualifications and encouraging those individuals to apply. As
part of diversity and inclusion recruitment efforts, DHS anticipates
collaborating with professional associations and institutions of higher
education, including historically Black colleges and universities and
other minority-serving institutions, including Hispanic-serving
institutions, Tribal colleges and universities, and Asian American and
Native American Pacific Islander-serving institutions. Through such
collaboration, DHS aims to (1) reinforce the design of CTMS as a merit
system, which provides equitable treatment; and (2) advance the hiring
of people from all backgrounds and representing a diverse set of
perspectives, including individuals belonging to traditionally
underrepresented or underserved groups. In alignment with Executive
Order 13985, CTMS recruitment strategies focus on reaching
underrepresented and underserved groups, including Black, Latino, and
Indigenous and Native American persons, Asian Americans and Pacific
Islanders and other persons of color; members of religious minorities;
lesbian, gay, bisexual, transgender, and queer (LGBTQ+) persons;
persons with disabilities; persons who live in rural areas; and persons
otherwise adversely affected by persistent poverty or inequality.
Additionally, collaborating with DOD, the Department of Veterans
Affairs, and groups such as veteran service organizations helps DHS to
consider the availability of preference eligibles for appointment to
qualified positions as required by 6 U.S.C. 658. As discussed
previously DHS may create new hiring processes for appointing
individuals to qualified positions; however under 6 U.S.C.
658(b)(1)(B), DHS may only appoint an individual to a qualified
position after taking into consideration the availability of preference
eligibles for appointment to the position.\133\ As used in 6 U.S.C.
658, the term ``preference eligible'' has the same
[[Page 47865]]
meaning as that term is defined under Title 5.\134\
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\133\ 6 U.S.C. 658(b)(1)(A)(ii).
\134\ 6 U.S.C. 658(a)(4); 5 U.S.C. 2108(3).
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The requirement in 6 U.S.C. 658 to consider the availability of
preference eligibles for appointment is different from veteran
preference requirements in the Title 5 that mandates specific
priorities, procedures, and rules for preference eligibles in
hiring.\135\ The term ``preference eligible'' for Title 5 purposes, is
associated with the concept of ``veterans' preference,'' which gives
advantage to certain veterans and related individuals for appointments
to Federal civilian positions in order to recognize the sacrifice and
economic loss suffered by a citizen who has served the Nation in
uniform and prevent such citizens from being penalized for their time
in military service when seeking Federal employment.\136\ Congress
defines ``veterans' preference requirement'' in 5 U.S.C. 2302(e)
clarifying that the concept of veterans' preference applies to hiring
as well as to other aspects of civil service staffing, such as
retention. Congress, however, does not use the term ``veterans'
preference'' in the Sec. 658 appointment authority. Moreover, the
Sec. 658 appointment authority is exempt from other provisions of law
relating to appointment of employees, which includes Title 5 hiring
processes and related veterans' preference requirements.\137\
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\135\ Compare 6 U.S.C. 658(b)(1)(A)(ii) and 5 U.S.C. 3309-3320.
\136\ U.S. Office of Personnel Management website, Veterans
Service, ``Veterans' Preference in Appointments,'' www.opm.gov/policy-data-oversight/veterans-services/vet-guide-for-hr-professionals/.
\137\ Wilks v. Department of the Army, 91 M.S.R.P 70 (2002)
(determining that because DOD's authority under 10 U.S.C. 1601
applies ``without regard to the provisions of any other law relating
to the appointment . . . of employees,'' then ``Title 5 provisions
relating to veterans' preference appointment rights do not factor
into the selections'' under that authority); see also Young v. Fed.
Mediation & Conciliation Service, 93 M.S.P.R. 99, ] 8 (2002) (``The
Office of Personnel Management has written that when an agency is
authorized to make appointment without regard to the civil service
laws, the agency is thereby empowered to make such appointment
`without regard to the usual competitive or civil service laws,
including veterans' preference.' 58 FR 131919, 13192 (Mar. 10,
1993)'' (emphasis original)).
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Although the Sec. 658 appointment authority is exempt from
veterans' preference requirements, the Secretary must consider the
availability of preference eligibles for appointment, and DHS intends
to honor the public policy purposes of veterans' preference. DHS
recognizes that many preference eligibles and veterans likely possess
the qualifications needed to support the DHS cybersecurity mission,
especially those that received cybersecurity-focused active duty
training and experience.
DHS considers the availability of preference eligibles for
appointment to qualified positions, and provides such individuals
advantage in the CTMS talent acquisition system, through strategic
recruitment. See Sec. 158.510. The new talent acquisition system
includes strategic recruitment strategies aimed specifically at
recruiting and hiring preference eligibles and other veterans,
including individuals with military service experience who might not
meet the statutory definition of preference eligibles. Strategic
recruitment of preference eligibles and veterans includes identifying
preference eligibles and members of the larger veteran community,
proactively communicating to them about the DHS-CS, and encouraging
their applications. DHS may tailor and refine CTMS recruitment
strategies targeting preference eligibles and veterans to ensure such
strategies further DHS's existing commitment to veteran recruitment,
hiring, and representation within the DHS workforce. As a result of
CTMS strategic recruitment efforts, DHS anticipates preference
eligibles and veterans to be well represented in the population of
individuals ready to be selected and appointed to qualified positions,
and matched with assignments in the DHS-CS. Note that because veterans'
preference requirements do not apply under CTMS, it is unnecessary to
examine prohibited personnel practices relating to veteran preference
requirements under the CTMS talent acquisition system.
In addition to developing and implementing CTMS recruitment
strategies and collaborating with other organizations and groups, DHS
uses a variety of other sources to identify individuals or groups of
individuals for recruitment. See Sec. 158.511. CTMS policy
implementing CTMS outreach and sourcing will address communication of
opportunities for employment in the DHS-CS, communication of
application processes to individuals being recruited or applying for
employment; and acceptance and treatment of applications for employment
in the DHS-CS, including minimum application requirements established
under this subpart. Outreach and sourcing under CTMS is likely use a
variety of sources of information and communication channels, such as
social media tools and key industry conferences, to connect with
individuals and share information.
Under Sec. 158.512, DHS may provide payment or reimbursement to
prospective DHS-CS employees for travel to and from pre-employment
interviews, which may include participating in an assessment process
under the CTMS assessment program. Reimbursement for any such interview
expenses are in accordance with existing laws, 5 U.S.C. 5706b and the
Federal Travel Regulations at 41 CFR chapters 301-304, governing such
reimbursement.
3. Qualifications-Based Assessment, Selection & Appointment
Under the CTMS talent acquisition system, DHS determines
individuals' qualifications under the CTMS assessment program and make
selections for, and appointments to, qualified positions based on
individuals' demonstrated CTMS qualifications. See Sec. 158.520. Any
individual interested in employment in the DHS-CS must participate in
the CTMS assessment program and meet applicable rating or scoring
thresholds in the assessment processes in which that individual
participates. To be eligible for selection and appointment, an
individual must also meet Federal employment eligibility requirements
and satisfy applicable employment-related criteria. See Sec. 158.521.
(a) CTMS Assessment Program
The CTMS assessment program is designed to efficiently and
accurately determine individuals' qualifications. See Sec. 158.520.
The assessment program includes one or more assessment processes based
on CTMS qualifications. Each assessment process compares the
qualifications of an individual to CTMS qualifications. The assessment
program is designed to measure qualifications for individuals at all
career stages, from those just beginning a career in cybersecurity to
those with years of proven experience working as a cybersecurity
technical expert or organizational leader. The assessment program is
also designed to reduce reliance on subjective decision-making and
avoid potential bias through systematic approaches to assessing
qualifications with objectivity and fairness.
The assessment program focuses on requiring applicants to
demonstrate their qualifications at a particular work level. Applicants
choose the work level for which they wish to be considered. For
applicants who are experienced cybersecurity professionals, this
includes choosing the cybersecurity technical areas in which they are
[[Page 47866]]
interested and for which they wish to be assessed.
CTMS assessment processes are formal and multi-part, which means an
applicant may need to participate in one or more standardized
instruments and procedures intended to measure the applicant's
qualifications and proficiency in those qualifications. Such
standardized instruments and procedures include a variety of tools.
Examples of such standardized instruments and procedures include
written knowledge tests, computer adaptive tests, work simulations, and
structured interviews.
As part of a CTMS assessment process, DHS also may use
demonstrations of qualifications, such as rewards earned from a
cybersecurity competition, publication of peer-reviewed cybersecurity
research, or a patented cybersecurity invention or discovery. The use
of such demonstrations provides additional options for DHS to assess
individuals who possess expertise beyond that expected of most
applicants and enables rapid assessment of such individuals'
qualifications.
DHS develops and administers each assessment process, including
those that use standardized instruments and procedures, in accordance
with applicable legal and professional guidelines governing the
assessment and selection of individuals. Such legal and professional
guidelines are the same guidelines mentioned previously that DHS uses
to establish and administer the CTMS acquisition system.
In order to maintain the objectivity and integrity of the CTMS
assessment program, DHS does not release assessment program materials
except as otherwise required by law. See Sec. 158.520. Circumstances
required by law under which DHS would release assessment materials
include providing individuals with their own testing results. While DHS
maintains control and security over assessment materials, DHS makes
available information to assist individuals in understanding the
purpose of and preparing for participating in the assessment program.
In addition to participating in the CTMS assessment program, any
individual interested in employment in the DHS-CS must meet employment
eligibility requirements and satisfy certain employment-related
criteria. See Sec. 158.521. Employment eligibility criteria are U.S.
citizenship requirements and Selective Service System requirements.
Employment-related criteria includes fitness standards for Federal
employment and related security requirements, geographic mobility
requirements, and other criteria related to any aspect of appointment
to or employment in the DHS-CS. See Sec. 158.521. DHS provides written
notice of any applicable employment-related criteria as part of an
offer of appointment to a qualified position, and an individual must
accept and satisfy those criteria to be appointed. DHS-CS employees
must continue to satisfy and maintain applicable employment-related
criteria. Employment-related criteria may change over time and DHS-CS
employees may be required to accept any changes in that criteria to
maintain employment in the DHS-CS. Also, DHS may disqualify an
individual from consideration or appointment to the DHS-CS for
providing false information to the Department, and other conduct
described in Sec. 158.521.
(b) DHS-CS Appointments
DHS selects an individual for employment in the DHS-CS based on the
individual's qualifications as determined under the CTMS assessment
program. See Sec. 158.522. Through an individual's participation in
the assessment program, DHS determines both an individual's CTMS
qualifications and the DHS-CS cybersecurity work the individual should
be able to perform successfully and proficiently.
In addition to the providing preference eligibles advantage in the
CTMS talent acquisition system through specific strategic recruitment
strategies, as previously discussed, DHS again considers the
availability of preference eligibles for appointment to qualified
positions when selecting an individual for employment in the DHS-CS.
See Sec. 158.522. Through individuals' participation in the assessment
program, DHS may encounter cases where more than one individual who
have met applicable rating or scoring thresholds are undergoing final
consideration based on their demonstrated CTMS qualifications. When a
selection is imminent and final consideration includes both preference
eligibles and non-preference eligibles, the Department carefully
reviews the demonstrated CTMS qualifications of such individuals,
weighs any applicable strategic talent priorities, and regards an
individual's status as a preference eligible as a positive factor in
accordance with CTMS policy.
DHS appoints a selected individual to a qualified position under
the authority in 6 U.S.C. 658. All such appointments are in the
excepted service and an individual who accepts an appointment to a
qualified position voluntarily accepts an appointment in the excepted
service. No qualified position may be established through the non-
competitive conversion of a current Federal employee from an
appointment made outside the authority in 6 U.S.C 658. See Sec.
158.522.
An appointment under CTMS to the DHS-CS is one of three types: A
renewable appointment, a continuing appointment, or an advisory
appointment. See Sec. Sec. 158.104, 158.522 and 158.523. A renewable
appointment is a time-limited appointment to a qualified position for
up to three years. A renewable appointment is analogous to a time-
limited appointment under Title 5, except a renewable appointment may
be renewed more than once for time periods up to three years, subject
to any limitation in CTMS policy regarding the number of renewals. A
continuing appointment is an appointment to a qualified position
without a specific time limit and is analogous to a permanent
appointment under Title 5. An advisory appointment is a political
appointment to a qualified position governed by part 158, subpart J,
which addresses advisory appointments and DHS-CS advisory appointees
generally. An advisory appointment is treated like a Schedule C
appointment under Title 5, except regarding appointment and
compensation, which are done under CTMS talent acquisition and
compensation systems. See Sec. Sec. 158.1001-158.1003. DHS may change
an unexpired renewable appointment to a continuing appointment for a
DHS-CS employee receiving a salary in the standard range, subject to
any additional limitation in CTMS policy. As discussed subsequently, a
DHS-CS employee receiving a salary in the extended range must be and
must remain serving in a renewable appointment while receiving a salary
in the extended range.
DHS may use CTMS renewable appointments to appoint reemployed
annuitants and individuals providing uncompensated service, which is
gratuitous service. See Sec. 158.523. Individuals appointed in this
manner serve at the will of the Secretary. DHS may only appoint
individuals to provide uncompensated service if the individual would
otherwise be eligible to receive a salary under CTMS that is equivalent
to or higher than EX-IV because such uncompensated service is solely
for the purpose of experts providing DHS senior leaders with
specialized advising. As such, the Secretary or designee must approve
the appointment of each individual providing uncompensated service by
name and the individual
[[Page 47867]]
must be appointed to a renewable appointment only.
DHS may also use CTMS appointments to appoint DHS-CS employees
being restored to duty. See Sec. 158.523. In accordance with 5 CFR
part 353, which addresses restoration to duty from uniformed service or
compensable injury, DHS restores to duty a DHS-CS employee who is a
covered person described in 5 CFR 353.103.
A DHS-CS employee serves in the same qualified position for the
duration of employment in the DHS-CS. See Sec. 158.522. In this
manner, CTMS, as a person-focused approach to talent management, allows
for a DHS-CS employee's qualified position to evolve over time as the
employee's career progresses. CTMS does not require a DHS-CS employee
to change positions in order for DHS to acknowledge enhancements to the
employee's CTMS qualifications or to recognize the employee with
greater levels of compensation. A DHS-CS employee may also have the
opportunity to perform different DHS-CS cybersecurity work or a
different assignment, including an expanded subset of related work,
without needing to change positions. DHS-CS employees do not progress
through their careers at DHS based on longevity in a qualified position
or through promotions. Career progression under CTMS is based on
enhancement of CTMS qualifications and salary progression resulting
from recognition adjustments. See Sec. 158.803.
As discussed previously in III.B.1 of this document, there is no
singular or standard career path for individuals with cybersecurity
skills, and the CTMS talent acquisition system specifically accounts
for this by ensuring former DHS-CS employees can easily return to the
DHS-CS. The design of CTMS recognizes the possibility that talent might
leave the DHS-CS and desire to return to the DHS-CS at a later point in
time. To facilitate future service in the DHS-CS by former DHS-CS
employees, under Sec. 158.525 DHS aims to maintain communication with
former DHS-CS employees and to provide opportunities for former DHS-CS
employees to be considered for appointment again to qualified
positions. DHS also aims to acknowledge any enhancements to former DHS-
CS employees' qualifications while outside of the DHS-CS, which might
affect salaries for such former employees upon return to the DHS-CS.
Under Sec. 158.525, a former DHS-CS employee must participate
again in the CTMS assessment program unless DHS determines otherwise
based on relevant factors. DHS must assess that former DHS-CS
employee's qualifications again, unless relevant factors indicate that
an assessment is unnecessary. Such assessment ensures that DHS has the
latest information about the individual's qualifications, which can
influence salary and other aspects of talent management under CTMS.
Factors which might make assessment unnecessary include time elapsed
since last appointment and similarity of cybersecurity work performed
since leaving the DHS-CS. For example, a new assessment would likely be
unnecessary if only a few months have passed since the former DHS-CS
employee's last appointment to a qualified position.
Appointment to a renewable or continuing appointment of a former
DHS-CS advisory appointee, or other political appointee as defined by
OPM, may be subject to additional requirements, including coordination
with OPM under laws governing conversion of political appointees to
non-political excepted service positions. Appointment of a former DHS-
CS employee to an advisory appointment is governed by part 158, subpart
J.
As required in 6 U.S.C. 658(d), all individuals appointed under
CTMS serves an initial service period that constitutes a probationary
period of three years beginning on the date of appointment. See Sec.
158.524. Service in the DHS-CS counts toward completion of a current
initial service period, but service in an appointment outside of the
DHS-CS does not count. Because of the new approach to talent management
under CTMS, including the new person-focused work valuation system and
the new talent acquisition system, service in other Federal
appointments are not be deemed equivalent or automatically credited as
such. Also, service as a DHS-CS advisory appointee, as a reemployed
annuitant in a qualified position, or providing uncompensated service
in the DHS-CS do not count towards completion of an initial service
period for any subsequent service in the DHS-CS. See Sec. 158.524.
Service as a DHS-CS advisory appointee, as a reemployed annuitant, or
providing uncompensated service is qualitatively different than other
service in the DHS-CS, either due to its policy-making nature or
specialized advising status or the Federal retiree status of the
individual. DHS addresses computations of initial service periods in
CTMS policy, including accounting for less than full-time work
schedules and certain absences that may affect computation of a DHS-CS
employee's initial service period.
E. Compensating Talent: Subpart F
Subpart F, Compensating Talent, contains regulations addressing the
CTMS compensation system, including the CTMS salary system and CTMS
additional compensation. The compensation system implements the
compensation authority in 6 U.S.C. 658, discussed previously in III.A.3
of this document. Under that authority in 6 U.S.C. 658 and the
exemption from laws relating to classification and compensation, DHS is
creating a new compensation system with a focus on CTMS qualifications,
individuals with those qualifications, and the value of those
qualifications to DHS.
1. CTMS Compensation System
The CTMS compensation system provides DHS with an enhanced ability
to establish and adjust overall compensation for the DHS-CS based on
the individual's qualifications, national and local cybersecurity
talent market trends, and DHS-CS employees' mission impact. The
compensation system includes the CTMS salary system and CTMS additional
compensation, both discussed subsequently. See Sec. Sec. 158.601 and
158.602.
DHS establishes and administers the compensation system based on a
compensation strategy. See Sec. Sec. 158.601 and 158.602. The CTMS
compensation strategy establishes four goals for the compensation
system. See Sec. 158.601. Those goals provide a framework for ongoing,
methodical review and maintenance of the compensation system. These
goals also guide use of the compensation system for recruitment and
retention purposes.
The first goal is to ensure the compensation of DHS-CS employees is
sufficiently competitive to recruit and retain individuals possessing
CTMS qualifications See Sec. 158.601. As discussed previously in III.B
of this document, the competitiveness of compensation is a main factor
contributing to DHS's challenges recruiting and retaining cybersecurity
talent. To further this compensation strategy goal, DHS determines
whether compensation is sufficiently competitive by conducting
cybersecurity talent market analysis to understand if it needs to
adjust aspects of compensation, such as salary ranges, to account for
trends in the cybersecurity talent market. In addition, DHS aims to
maintain sufficiently competitive compensation by analyzing data
regarding the effectiveness of CTMS in recruiting and retaining DHS-CS
employees, including the degree to
[[Page 47868]]
which application abandonment, appointment offer rejection, and
employee attrition rates can be attributed to individuals'
dissatisfaction with compensation.
The second goal under the CTMS compensation strategy is to value,
encourage, and recognize exceptional qualifications and mission impact;
excellence and innovation in the performance of cybersecurity work; and
continual learning to adapt to evolving cybersecurity risks and
cybersecurity threats. See Sec. 158.601. As discussed previously in
III.B of this document, main factors contributing to DHS's challenges
recruiting and retaining cybersecurity talent are the lack of focus of
existing Federal talent management practices on individuals and their
skills, as well as fierce competition for those individuals and their
skills. This compensation strategy goal aligns to the DHS-CS core
values of expertise, innovation, and adaptability, described in Sec.
158.305, and focuses the compensation system on individuals'
qualifications and competing for those qualifications. The DHS-CS best
fulfills its purpose of enhancing the cybersecurity of the Nation when
DHS-CS employees are focused on: Enhancing qualifications and impacting
the DHS cybersecurity mission; producing quality work products and
developing new methods to perform cybersecurity work; and continually
learning to counter emerging or novel risks and threats. Compensating
employees to support and foster such outcomes helps to ensure the DHS-
CS fulfills its purpose and ensure that compensation under CTMS
reinforces the core values of the DHS-CS.
The third goal under the CTMS compensation strategy is to
acknowledge the unpredictable nature of cybersecurity work and the
expectation that all DHS-CS employees occasionally work unusual hours
and extended hours, as needed, to execute the DHS cybersecurity
mission, especially in response to exigent circumstances and
emergencies. See Sec. 158.601. As discussed previously in III.B of
this document, cybersecurity work is knowledge work that requires
individuals to apply their skills to solve problems and achieve
outcomes, often in unpredictable ways. Toward this compensation
strategy goal, DHS-CS employees are salaried and are not considered
hourly employees. Accordingly, under the compensation system, each DHS-
CS employee receives a salary. Such a salary accounts for the
unpredictable nature of cybersecurity work and the expectation that
DHS-CS employees occasionally work unusual and extended hours, and DHS-
CS employees are expected to successfully and proficiently perform
cybersecurity work in exchange for the compensation provided in their
salaries and are not entitled to more compensation for occasionally
working unusual and extended hours in order to perform that work. Under
CTMS, Title 5 premium pay provisions, overtime pay provisions of the
FLSA, and most Title 5 compensatory time-off provisions do not apply.
See Sec. 158.605. Instead, CTMS utilizes the CTMS salary system and
types of additional compensation intended to ensure DHS-CS employees
are compensated appropriately for their qualifications and impact on
the DHS cybersecurity mission. Under the CTMS, DHS monitors hours
worked by DHS-CS employees using the CTMS work scheduling system
described in Sec. 158.705, and hours worked is important for
administering salary and is a factor in providing some types of
additional compensation. DHS can address employees' mission impact
through recognition payments under Sec. 158.632, and DHS can address
special working conditions, including circumstances that exceed the
expectation of occasional unusual and extended hours, under the CTMS
special working conditions payment program described in Sec. 158.642.
The fourth goal under the CTMS compensation strategy is to reflect
an understanding of the cybersecurity talent market, including leading
compensation practices and trends and current work expectations and
arrangements, an understanding of the concepts of internal and external
equity, and an understanding of the concepts of total compensation and
total rewards. See Sec. 158.601. As discussed previously in III.B of
this document, there is a specific, competitive talent market for
cybersecurity that comprises cybersecurity employers, including Federal
agencies and private sector employers, and cybersecurity talent, which
is individuals with cybersecurity expertise. In a field as dynamic as
cybersecurity, DHS cannot establish a static approach to compensation
and assume it will remain competitive enough over time to recruit and
retain individuals with the qualifications necessary to execute the DHS
cybersecurity mission. DHS must maintain an understanding of
compensation in the cybersecurity talent market, and in designing and
adjusting aspects of CTMS compensation, DHS must attempt to make like
comparisons between the total compensation packages offered by
employers in the cybersecurity talent market and DHS-CS employees'
salaries and additional compensation, including the complete set of
traditional Federal employee benefits. DHS must also ensure its
approach to compensation remains informed by changes in how individuals
might expect and prefer to perform cybersecurity work, as well as work
opportunities commonly available at employers in the cybersecurity
talent market. Therefore, DHS may need to consider how it offers work
arrangements, such as part-time work schedules and project-based and
remote work, and DHS may need to customize CTMS compensation and
compensation administration to such arrangements.
DHS also establishes and administers the compensation system based
on information from strategic talent planning, generally recognized
compensation principles and practices, and strategic talent priorities.
Sec. 158.602. The CTMS compensation strategy, together with the talent
market analysis from strategic talent planning, ensures that the
compensation system provides a market-sensitive approach to
compensation, enabling DHS to better compete for top cybersecurity
talent. The generally recognized principles and practices are the same
principles and practices, discussed previously, that DHS uses for
conducting talent market analysis. Using these principles and practices
for the compensation system ensures the design and administration of
CTMS compensation addresses DHS organizational goals and complies with
legal requirements, including those prohibiting discrimination in
compensation.
Compensating DHS-CS employees using a new market-sensitive
compensation system guided by a compensation strategy intended to keep
DHS competitive when recruiting and retaining cybersecurity talent
represents a shift from existing Federal compensation practices for
other Federal civil service positions. As discussed previously in
III.A.3 of this document, the authority in 6 U.S.C. 658 to create a new
compensation system is exempt from any other provision of law relating
to compensation of employees, as well as from other provisions of law
relating to classification. As such, Sec. 158.605 lists existing laws
relating to compensation that do not apply under CTMS, to the DHS-CS,
or to talent management under CTMS. The laws listed in Sec. 158.605
include provisions in 5 U.S.C Chapter 53 establishing and governing
other pay systems; premium pay provisions in 5 U.S.C. Chapter 55 and
the minimum wage and overtime pay provisions of the FLSA; provisions
[[Page 47869]]
in Title 5 regarding monetary awards, incentives, and certain
differentials; the limitation on annual aggregate compensation in 5
U.S.C. 5307; and provisions in 5 U.S.C. Chapter 61 governing work
schedules.
2. DHS-CS Employee Compensation
Compensation for DHS-CS employees is salary and additional
compensation. See Sec. 158.603. As defined in Sec. 158.104, salary
means an annual rate of pay under CTMS. Compensation for DHS-CS
advisory appointees also is salary and additional compensation under
CTMS, subject to additional requirements and restrictions. Subpart J,
discussed subsequently, addresses compensation for DHS-CS advisory
appointees.
A DHS-CS employee receives a salary under the CTMS salary system.
See Sec. 158.603. A DHS-CS employee providing uncompensated service,
however, does not receive a salary. A DHS-CS employee's salary may
include a local cybersecurity talent market supplement, which, as
discussed subsequently, is similar to locality-based comparability
payments under Title 5.
In addition to salary, DHS-CS employees, except those providing
uncompensated service, may receive additional compensation. As defined
in Sec. 158.104, additional compensation is several types of
compensation described in Sec. 158.603(c). CTMS additional
compensation includes: CTMS recognition, such as recognition payments;
other special payments under CTMS; and other compensation provided in
accordance with relevant provisions of laws, including leave and
benefits. The types of additional compensation are set out in separate
sections in subpart F.
CTMS additional compensation implements the discretionary
additional compensation authority in 6 U.S.C. 658(b)(3)(a). As
previously discussed in III.A.3 of this document, DHS interprets this
additional compensation authority as requiring DHS to base any
discretionary CTMS additional compensation on Title 5 provisions
regarding types of additional compensation, and DHS may combine and
streamline such provisions as long as it is clear which specific Title
5 provisions serve as the base or foundation for CTMS additional
compensation. As discussed previously in III.B of this document, the
current inability to quickly construct and nimbly adjust competitive
total compensation packages is a main factor in DHS's challenges
recruiting and retaining cybersecurity talent. Therefore, DHS is
combining and streamlining several provisions of Title 5 to establish
types of additional compensation specific to the new talent management
system, as well as providing traditional Federal employee benefits,
such as retirement, health benefits, and insurance programs.
For CTMS additional compensation, DHS is creating a new toolset
based on Title 5 authorities for additional compensation. The CTMS
toolset provides a cohesive set of tools tailored to the mission-
driven, person-focused, market-sensitive design of CTMS.
The new toolset has three categories: CTMS recognition, other
special pay under CTMS, and other CTMS compensation provided in
accordance with relevant provisions of other laws. CTMS recognition,
described in Sec. Sec. 158.630-158.634, comprises three types of
additional compensation, which are recognition payments, recognition
time-off, and honorary recognition. CTMS recognition is based on Title
5 authorities for cash awards and incentives, performance-based awards,
time-off awards, and honorary awards.
The category of other special pay under CTMS comprises four types
of additional compensation: CTMS professional development and training,
described in Sec. 158.640, based on Title 5 authorities for training
and professional development; CTMS student loan repayments, described
in Sec. 158.641, based on Title 5 authorities for student loan
repayments; CTMS special working conditions payments, described in
Sec. 158.642, based on Title 5 authorities for certain payments; and
CTMS allowances in nonforeign areas, described in Sec. 158.643, as
mandated in 6 U.S.C 658(b)(3)(B).
The category of other CTMS compensation provided in accordance with
relevant provisions of other laws includes other traditional types of
additional compensation authorized in Title 5, such as holidays, leave,
and benefits, described in Sec. Sec. 158.650-158.655, that DHS is
authorizing under 6 U.S.C. 658.
DHS provides additional compensation in alignment with the CTMS
compensation strategy and under the separate sections in subpart E that
govern each type of additional compensation. Those separate sections,
each discussed subsequently, set out the requirements and eligibility
for each type of additional compensation, as well as the provisions of
Title 5 on which each type of CTMS additional compensation is based.
A DHS-CS employee, except one providing uncompensated service, may
receive any type of additional compensation in combination with any
other type of additional compensation, subject to the requirements and
eligibility criteria in the separate sections governing each type of
additional compensation and the CTMS aggregate compensation limit,
discussed subsequently.
3. CTMS Salary System
The CTMS compensation system includes a salary system, which
comprises at least one salary structure, a process for providing local
cybersecurity talent market supplements, and a framework for
administering salary under CTMS. See Sec. 158.610. DHS establishes and
administers the CTMS salary system with the goals of maintaining
sufficiently competitive salaries for DHS-CS employees for recruitment
and retention purposes and equitable salaries among DHS-CS employees.
These goals align with the compensation strategy in Sec. 158.601 and
with the talent management principles of merit and fairness in Sec.
158.303. With the salary system, DHS addresses external equity between
the DHS-CS and the cybersecurity talent market so that DHS can compete
for cybersecurity talent, and DHS does so through the CTMS compensation
strategy that ensures consideration of the cybersecurity talent market.
With the salary system, DHS also addresses internal equity within the
DHS-CS through the work valuation system. Internal equity for salaries
among DHS-CS employees is one outcome of the work and career structures
established under the work valuation system; DHS aims to maintain
equitable salaries for DHS-CS employees in the same work level and with
similar qualifications and mission impact.
In addition to the goals of external and internal equity, DHS also
establishes and operates the salary system within the boundaries
provided by the CTMS salary range.
(a) CTMS Salary Range
The CTMS salary range comprises a standard range, which has an
upper limit of the Vice President's salary ($255,800 in 2021), and an
extended range for use in limited circumstances, which has an upper
limit of 150 percent of EX-I ($332,100 in 2021). See Sec. 158.613.
The salary range implements the basic pay authority in 6 U.S.C.
658(b)(2)(a) regarding rates of pay. As discussed previously in III.A.3
of this document, DHS interprets this basic pay authority to mean that
the boundaries of the new
[[Page 47870]]
salary system, as provided by the nine rate ranges for the eleven types
of comparable positions in DOD, may be from no minimum to 150 percent
of EX-I or no maximum. As discussed previously in II.B of this
document, the competitiveness of compensation, especially salary, is a
main factor contributing to DHS's challenges recruiting and retaining
cybersecurity talent. Therefore, the Department is using the highest
maximum rates for the upper boundary for the new salary system
DHS is setting the upper boundary for the salary system at the Vice
President's salary ($255,800 in 2021), with an additional upper
boundary of 150 percent of EX-I. As discussed previously in III.A.3 of
this document, the rate range for one comparable position in DOD \138\
does not provide a maximum rate and DHS could apply this to mean that
there is no upper boundary for the CTMS salary system. Instead, to
ensure some certainty in establishing the range for the salary system
and assist in standardizing and controlling employee costs, DHS is
applying a specific maximum rate as the upper boundary for the CTMS
salary range. The highest maximum rate provided for a comparable
position in DOD is 150 percent of EX-I; \139\ however, to provide
consistency across the CTMS compensation system, DHS is applying the
maximum rate of the Vice President's salary \140\ as the standard
boundary for the CTMS salary range. Applying the Vice President's
salary as the standard boundary provides one limit amount that applies
across CTMS compensation: The Vice President's salary is also the
highest CTMS aggregate compensation limit, which restricts some types
of additional compensation, as discussed subsequently. Additionally,
because types of CTMS additional compensation, such as CTMS recognition
payments, are subject to the aggregate compensation cap, any DHS-CS
employee receiving a salary higher than the Vice President's salary,
could not receive such additional compensation. DHS uses the higher
salary limit of 150 percent of EX-I or the extended range, but only for
only limited circumstances.
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\138\ DOD pilot cybersecurity professional positions do not have
a maximum rate. National Defense Authorization Act for Fiscal year
2017, Public Law 15-91, Sec. 1110(f), (Dec. 2017).
\139\ Provided for DOD STRL positions in 10 U.S.C. 2358c(d).
\140\ Provided for IC HQE positions under 50 U.S.C.
3024(f)(3)(A)(iii) and ICD 623, Intelligence Community Directive
Number 623, Appointment of Highly Qualified Experts (Oct. 16, 2008),
4.
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Because the CTMS salary range implements the boundaries for the
CTMS salary system provided by rate ranges for comparable positions in
DOD, if the rate ranges for comparable positions in DOD change, DHS
adjusts the CTMS salary range as necessary.
The standard range applies unless the Secretary or designee invokes
the extended range for specific DHS-CS employees serving in renewable
appointments. See Sec. 158.613. The extended range encompasses all
salary amounts above the standard range's upper limit of the Vice
President's salary ($255,800 in 2021) and up to 150 percent of EX-I
($332,100 in 2021). Because the extended range contains such high
salary amounts, DHS is limiting its use to ensure DHS only relies on
these salary amounts as necessary and in a way that incorporates a
time-limit to ensure the need for such salaries is reassessed. Because
a renewable appointment is a time-limited appointment to a qualified
position that may be renewed, requiring that any DHS-CS employee
receiving a salary in the extended range must be in a renewable
appointment ensures that the use of the extended range is similarly
time-limited, but also similarly renewable.
To invoke the extended range for specific DHS-CS employees, the
Secretary must determine based on the CTMS compensation strategy, that
the employee's qualifications, the employee's mission impact, and
mission-related requirements warrant adjusting the employee's salary
beyond the standard range. See Sec. 158.613. Also, the Secretary or
designee must approve a salary in the extended range for each such DHS-
CS employee by name. To receive a salary in the extended range, the
employee must either already be in a renewable appointment, or the
employee must accept a renewable appointment. While any DHS-CS employee
is receiving a salary in an amount in the extended range, DHS may not
change that employee's appointment to a continuing appointment. To
invoke the extended range for new DHS-CS employees, the Secretary or
designee must make a similar determination for that individual and
approve the appointment of the individual by name. See Sec. 158.513.
That individual must be appointed to a renewable appointment only and
while that individual is receiving a salary in an amount in the
extended range, DHS may not change that individual's appointment to a
continuing appointment at any time.
(b) CTMS Salary Structure
DHS provides salaries to DHS-CS employees under a CTMS salary
structure. DHS establishes and administers at least one CTMS salary
structure based on the compensation strategy and the same information,
principles and practices, and priorities on which the CTMS compensation
system is based. See Sec. 158.611.
A salary structure is bounded by the CTMS salary range and includes
subranges. See Sec. 158.611. The subranges are associated with work
levels, which are one of the work and career structures established by
the work valuation system. Each subrange is associated with at least
one work level. For example, one salary subrange might be associated
with a work level for entry-level employees in the DHS-CS, but another
subrange might be associated with a work level for certain senior
expert employees and executive employees in the DHS-CS.
A salary structure also incorporates CTMS salary limitations and
may incorporate other salary and cost control strategies. See Sec.
158.614. CTMS salary limitations set the maximum salary for the
subranges. Other salary and cost control strategies, such as control
points, assist with standardization and prediction of employee costs.
The CTMS salary limitations implement the basic pay authority in 6
U.S.C. 658(b)(2)(a) regarding limitations on maximum rates of pay. As
discussed previously in III.A.3 of this document, DHS interprets this
basic pay authority to mean that the CTMS salary system is subject to
the same salary caps applicable to the eleven types of comparable
positions in DOD. Also as discussed previously in III.A.3, the
applicable salary caps are six caps ranging from GS-15, step 10 to 150
percent of EX-I, and DHS has discretion for how to apply those six caps
to the salary system. The highest salary cap, 150 percent of EX-I, is
also the upper boundary for the extended range, and as such is the cap
for the entire CTMS salary system. DHS is applying the five remaining
salary caps as CTMS salary limitations for the subranges. The CTMS
salary limitations are: GS-15, step 10 (excluding locality pay or any
other additional pay), EX-IV, EX-II, EX-I, and the Vice President's
salary. See Sec. 158.614. DHS incorporates the CTMS salary limitations
into a salary structure by assigning the limitations, in ascending
order, to the subranges of the salary structure. The result is that
each subrange receives a salary limitation that is greater than or
equal to the salary maximum of that subrange. See
[[Page 47871]]
Sec. 158.611. If the salary caps for comparable positions in DOD
change in the future, DHS will adjust the CTMS salary limitations as
necessary. DHS may also establish other limitations on maximum rates of
salary, in addition to these CTMS salary limitations. See Sec.
158.514.
DHS may adjust a CTMS salary structure based on the compensation
strategy and the same information, principles and practices, and
priorities with which DHS establishes and administers the salary
structure. See Sec. 158.611. The purpose of considering adjustments to
a salary structure, including its subranges, is to determine whether
the salaries provided under that salary structure remain sufficiently
competitive in alignment with the compensation strategy and the goals
of the salary system. DHS might find, for example, that one salary
subrange is lagging behind the cybersecurity talent market based on a
trend of rising salaries for specific qualifications, and therefore,
DHS might make adjustments to that subrange, such as increasing the
salary minimum for that subrange. DHS may review and adjust a CTMS
salary structure annually, and may also do so sooner than annually as
the Secretary or designee determines necessary.
(c) CTMS Local Cybersecurity Talent Market Supplement
As part of the CTMS salary system, DHS is establishing a process
for providing a local cybersecurity talent market supplement (LCTMS).
See Sec. 158.612. DHS may provide a LCTMS to a DHS-CS employee in a
specific geographic location to ensure the employee receives a
sufficiently competitive salary, which is the purpose of a LCTMS and a
goal of the compensation strategy and salary system. Much like
locality-based comparability payments under 5 U.S.C. 5304, a LCTMS is
intended to address geographic compensation disparities and a LCTMS
does so through local cybersecurity talent market supplement
percentages.
A local cybersecurity talent market is the cybersecurity talent
market in a geographic area that DHS defines based on analysis of the
cybersecurity talent market, and that may incorporate the definitions
of localities under 5 U.S.C. 5304. See Sec. 158.612. For defining such
geographic areas, DHS may rely on localities established or modified
under 5 U.S.C. 5304 but may need to adjust the boundaries of such
localities to match specific cybersecurity talent markets. DHS may also
define geographic areas for local cybersecurity talent markets separate
from the localities covered by 5 U.S.C. 5304, especially if such
localities do not align to the cybersecurity talent markets in which
DHS competes for cybersecurity talent.
A local cybersecurity talent market supplement percentage is a
percentage DHS assigns to a local cybersecurity talent market to
increase the amount of salaries for DHS-CS employees provided under a
salary structure in that local cybersecurity talent market. See Sec.
158.612. This percentage increases the amount of a salary to account
for the difference between the salary as determined under a CTMS salary
structure and what DHS determines to be a sufficiently competitive
salary for that local cybersecurity talent market.
DHS determines whether a LCTMS is necessary in a local
cybersecurity talent market based on the compensation strategy and the
same information, principles and practices, and priorities on which the
CTMS compensation system is based and that DHS uses to establish and
adjust a CTMS salary structure. See Sec. 158.612. Based on that
strategy and same information, principles and practices, and
priorities, DHS may establish and periodically adjust any local
cybersecurity talent markets and local cybersecurity talent market
supplement percentages. An adjustment to a local cybersecurity talent
market supplement percentage may include termination when DHS
determines it is no longer necessary for the purpose of a LCTMS.
DHS determines eligibility for a LCTMS under Sec. 158.612 and CTMS
policy implementing that section. Under Sec. 158.612, a DHS-CS
employee is eligible for a LCTMS if the employee's official worksite is
located in a local cybersecurity talent market with an assigned local
cybersecurity talent market supplement percentage for the salary
structure under which the employee's salary is provided. Thus, a DHS-CS
employee's official worksite location and the salary structure for the
employee's salary are both factors in eligibility for a LTCMS. DHS may
have more than one salary structure, but a LCTMS may not be required
for all salary structures to ensure sufficiently competitive salaries.
Any LCTMS a DHS-CS employee receives terminates when the employee's
official worksite is no longer in a local cybersecurity talent market
with an assigned local cybersecurity talent market supplement
percentage, or the salary structure under which the employee's salary
is provided no longer has an assigned local cybersecurity labor market
supplement, or both.
A LCTMS is limited by applicable CTMS salary limitations. A DHS-CS
employee may not receive any portion of a LCTMS that would cause that
employee's salary to exceed applicable CTMS salary limitations, but may
receive the portion of the LCTMS up to the applicable limitations. A
DHS-CS employee also cannot receive a LCTMS that would cause the
employee's salary to be in the CTMS extended range unless the Secretary
invokes the extended range for that employee.
Any LCTMS a DHS-CS employee receives is part of the employee's
salary and as such a LCTMS is basic pay for purposes under Title 5,
such as civil service retirement. A LCTMS, however, is not basic pay
for purposes of determining pay under Title 5 provisions addressing a
reduction in pay as an adverse action, and a reduction in salary for a
DHS-CS employee because of a change in any LCTMS, including a change in
amount or termination of a LCTMS, for that employee is not an adverse
action under 5 U.S.C. 7512. See Sec. Sec. 158.612. Decisions regarding
such supplements are based on geographic location and calculations for
providing such a supplement. This is similar to changes in locality-
based comparability payments under Title 5 because under Title 5 a
change in an employee's official worksite to a different locality pay
area may serve to reduce that employee's basic pay, but is not a
reduction in basic pay for the purposes of 5 U.S.C. 7512 because
locality-based comparability payments are not considered basic pay for
those purposes.\141\
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\141\ 5 CFR 531.610.
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(d) CTMS Salary Administration
The CTMS salary system includes a framework for salary
administration that addresses setting salaries and adjusting salaries
under CTMS, and administering CTMS salaries under relevant provisions
of other laws. See Sec. Sec. 158.620-158.622. Although the CTMS salary
system is exempt from other laws relating to compensation of employees,
under the authority and exemptions in 6 U.S.C. 658, DHS is setting up a
new compensation system and salary system, and the new systems must
integrate with existing pay administration procedures and
infrastructure, such as information technology support systems, used by
Federal agencies to process and ensure employees receive their earned
compensation.
DHS sets the salary for an individual accepting an appointment to a
qualified position within a subrange of a CTMS salary structure as part
of selection and appointment of the individual. DHS sets
[[Page 47872]]
an individual's initial salary based on: The individual's CTMS
qualifications; applicable work and career structures, including the
individual's initial work level; the individual's anticipated mission
impact; mission-related requirements; and strategic talent priorities
set by CTMS leadership. See Sec. 158.620.
As discussed previously, CTMS qualifications are the core of CTMS,
and setting salary based on qualifications ensures a focus on the value
of those qualifications to DHS. Work and career structures group and
value qualifications, and work level is one such grouping for purposes
of similar treatment in talent management and which addresses internal
equity among DHS-CS employees' salaries. DHS determines an individual's
CTMS qualifications under the CTMS assessment program and determines
applicable work and career structures as part of selection and
appointment of the individual.
A goal of the DHS-CS is the most effective execution of the DHS
cybersecurity mission, and therefore a DHS-CS employee's mission impact
is an important part of the employee's value or worth to DHS. As such
the employee's anticipated mission impact is a factor in setting
initial salary. DHS determines individuals' anticipated mission impact
using information from the application and assessment processes.
Mission-related requirements are relevant for addressing emerging
or urgent mission circumstances, and for setting salaries with
information about mission-related requirements, such as a need for
talent that understands a novel technology related to an urgent
cybersecurity threat. Mission-related requirements, as defined in Sec.
158.104, are characteristics of an individual's expertise or
characteristics of cybersecurity work, or both, including highly-
specialized expertise and cybersecurity talent market-related
information, that are associated with successful execution of the DHS
cybersecurity mission, and that are determined by officials with
appropriate decision-making authority. Strategic talent priorities are
part of the design and administration of CTMS and the CTMS compensation
system, and setting initial salaries based on such priorities ensures
salaries also reflect DHS and CTMS leadership priorities and goals for
the DHS-CS.
DHS may set the salary for an incoming DHS-CS employee without
regard to any prior salaries of the individual, including any basic pay
while serving in a previous Federal appointment and any previous salary
as a DHS-CS employee for a returning, former DHS-CS employee. See Sec.
158.620. This emphasizes that DHS uses the CTMS compensation system to
set DHS-CS employee salaries based on individuals' value or worth in
relationship to the DHS cybersecurity mission. This also serves to
reduce reliance on salary history information that may reflect
systematic bias and historical salary discrimination.
Under CTMS, DHS adjusts a DHS-CS employee's salary by providing a
LCTMS or a recognition adjustment, or both. See Sec. 158.621. A
recognition adjustment is an adjustment to a DHS-CS employee's salary
and is based primarily on the employee's mission impact. See Sec. Sec.
158.630 and 158.631. DHS determines the mission impact of a DHS-CS
employee, individually or as part of group of DHS-CS employees or both,
using mission impact reviews, which are part of the CTMS performance
management program described in Sec. 158.802 and discussed
subsequently. In providing a recognition adjustment, DHS may also
consider mission-related requirements and strategic talent priorities
for the same reasons DHS considers them for setting salaries. A
recognition adjustment does not alter any LCTMS for that employee.
While a LCTMS is part of a receiving DHS-CS employee's salary, a
recognition adjustment does not alter the percentage of a LCTMS.
A DHS-CS employee may not receive a recognition adjustment that
would cause the employee's salary to exceed the CTMS salary range or a
CTMS salary limitation applicable to the subrange for that employee's
salary. See Sec. 158.631. A DHS-CS employee may not receive a
recognition adjustment that would cause the employee's salary to be in
the extended range, unless the Secretary or designee invokes the
extended range for that employee, as discussed previously.
DHS does not provide DHS-CS employees with any automatic salary
increases or any salary increases based on length of service in the
DHS-CS or service in any position outside the DHS-CS. CTMS is not a
longevity-based approach to talent management, and career progression
in the DHS-CS is not based on length of service in the DHS-CS or the
Federal government. Providing a recognition adjustment or a LCTMS is
the only means for adjusting a DHS-CS employee's salary.
If, however, DHS adjusts a salary structure that results in an
increase to the salary minimum for one or more subranges of the salary
structure, DHS adjusts the salary for any affected DHS-CS employee. See
158.621. For a DHS-CS employee receiving a salary in an affected
subrange at the affected salary minimum, DHS adjusts the employee's
salary to reflect the adjustment to the salary structure and the new
salary minimum for the affected subrange. Such a salary adjustment is
not considered a recognition adjustment.
Under CTMS, a recognition adjustment is not a promotion for any
purpose under Title 5. See Sec. 158.631. Salary progression resulting
from recognition adjustments is only one part of a DHS-CS employee's
career progression. Career progression in the DHS-CS is based on both
enhancement of CTMS qualifications and salary progression. See Sec.
158.803. Enhancement of CTMS qualifications is one component of career
progression in the DHS-CS in alignment with the DHS core values of
expertise, innovation, and adaptability and in alignment with the
compensation strategy. DHS expects DHS-CS employees to strive to
enhance individual expertise through continual learning and anticipate
and adapt to emergent and future cybersecurity risks. Additionally, as
part of the compensation strategy, DHS values, encourages, and
recognizes exceptional qualifications and mission impact, and DHS
adjusts DHS-CS employees' salaries in recognition of their mission
impact.
In order to integrate CTMS salary administration with existing pay
administration procedures and infrastructure used by Federal agencies,
DHS administers salaries of DHS-CS employees in accordance with
relevant provisions of other laws governing pay administration for
Federal civil service employees. DHS administers salaries under CTMS in
accordance with the 5 CFR part 550 generally and U.S. Code sections
enumerated in Sec. 158.622. Because 5 CFR part 550 addresses
administration of other types of compensation and not just salary
administration, Sec. 158.622 also lists the provisions of 5 CFR part
550 that do not apply to CTMS. Those provisions of 5 CFR part 550
address types of premium pay \142\ and compensatory time-off for
travel, which as discussed previously, do not apply under CTMS.
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\142\ Subpart A of 5 CFR part 550 addresses types of premium pay
and administration of such pay, including a biweekly maximum earning
limitation, known as a biweekly pay cap. Under Sec. 158.622, and
Sec. 158.605, Subpart A, including application of the biweekly pay
cap, does not apply to CTMS.
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DHS also administers DHS-CS employee salaries based on
consideration of each employee's work schedule under the CTMS work
scheduling system, described in Sec. 158.705 and discussed
subsequently,
[[Page 47873]]
and may convert a DHS-CS employee's salary into an hourly rate,
biweekly rate, or other rate as necessary to ensure accurate operation
of existing pay administration procedures and infrastructure. See Sec.
158.622. In converting salaries to an hourly, biweekly, or other rate,
DHS may need to consider the hours worked and any leave taken by an
employee to ensure proper payment of salary.
4. CTMS Recognition
The CTMS compensation system comprises the CTMS salary system and
CTMS additional compensation, and CTMS recognition is a main aspect of
both. With CTMS recognition, DHS recognizes and rewards DHS-CS
employees, in alignment with the CTMS compensation strategy and CTMS
performance management program, based primarily on mission impact.
CTMS recognition includes four types of recognition: Recognition
adjustments, recognition payments, recognition time-off, and honorary
recognition. See Sec. Sec. 158.631-158.634. As discussed previously,
DHS adjusts DHS-CS employees' salaries through recognition adjustments.
The other three types of CTMS recognition--payments, time-off, and
honorary--are additional compensation.
Like recognition adjustments, DHS provides recognition payments,
recognition time-off, and honorary recognition, based primarily on a
DHS-CS employee's mission impact. See Sec. Sec. 158.630 and 158.632-
158.634. DHS determines the mission impact of a DHS-CS employee,
individually or as part of group of DHS-CS employees or both, using
mission impact reviews, which are part of the CTMS performance
management program described in Sec. 158.802 and discussed
subsequently. In providing recognition payments, recognition time-off,
and honorary recognition, DHS may also consider mission-related
requirements and strategic talent priorities for the same reasons DHS
may consider these in providing a recognition adjustment and for
setting initial salaries.
DHS may also use CTMS recognition, in the form of recognition
payments and recognition time-off, as part of recruiting new DHS-CS
employees. DHS may need to offer a recognition payment as a signing
bonus to ensure that an individual's compensation package is
sufficiently competitive and to incentivize the individual to serve in
the DHS-CS. DHS provides recognition to an incoming DHS-CS employee
based on the incoming employee's CTMS qualifications, the incoming
employee's anticipated mission impact, mission-related requirements,
and strategic talent priorities. See Sec. 158.630. DHS bases
recognition for an incoming DHS-CS employee on these for the same
reasons DHS considers them for setting initial salaries.
DHS determines eligibility for CTMS recognition under Sec. Sec.
158.630-158.634 and CTMS policy. As stated in Sec. 158.630, a DHS-CS
employee is ineligible to receive CTMS recognition if DHS determines
the employee's performance is unacceptable, as defined in 5 U.S.C.
4301(3) or the employee receives an unacceptable rating of record under
CTMS performance management, or DHS determines the employee has engaged
in misconduct. A DHS-CS employee should only be recognized if the
employee's performance is acceptable. Similarly, a DHS-CS employee
should not be recognized if engaging in misconduct. For these same
reasons, DHS may defer providing recognition if DHS is in the process
of determining whether a DHS-CS employee's performance is unacceptable
or whether the employee has engaged in misconduct. See Sec. 158.630.
CTMS policy will address other eligibility criteria for CTMS
recognition.
In addition to eligibility criteria, CTMS policy will also address
requirements for documenting the reason and basis for providing CTMS
recognition, appropriate levels of review and approval, and any
limitations on recognitions, among other matters necessary for
administering CTMS recognition.
CTMS recognition payments, recognition time-off, and honorary
recognition are based on Title 5 authorities. As discussed previously
in III.A.3 of this document, under the Sec. 658 additional
compensation authority DHS may combine and streamline provisions of
Title 5 regarding types of additional compensation, as long as it is
clear on which specific Title 5 provisions CTMS additional compensation
is based. Sections 158.632 through 158.634 list the Title 5 authorities
on which CTMS recognition payments, recognition time-off, and honorary
recognition are based. Each of these types of recognition is discussed
subsequently.
(a) CTMS Recognition Payments
A CTMS recognition payment is a lump-sum payment, an installment
payment, or recurring payments of up to a percentage of the receiving
DHS-CS employee's salary: Up to 20 percent, or up to 50 percent with
approval of the Secretary or designee. See Sec. 158.632. DHS may offer
a recognition payment to an incoming DHS-CS employee as part of an
offer for employment in the DHS-CS. A recognition payment for an
incoming DHS-CS employee is up to 20 percent of the incoming employee's
initial salary and is provided upon appointment. See Sec. 158.632.
CTMS recognition payments are based on Title 5 authorities
providing seven types of cash awards and incentives: 5 U.S.C. 4502
providing cash awards for a suggestion, invention, superior
accomplishment or other meritorious effort,\143\ 5 U.S.C. 4503
providing agency awards for special acts,\144\ 5 U.S.C. 4505a and 5384
providing performance-based cash awards,\145\ 5 U.S.C. 4507 and 4507a
providing presidential rank awards,\146\ and 5 U.S.C. 5753 and 5754
providing recruitment incentives, relocation incentives, and
recruitment incentives.\147\ These Title 5 authorities
[[Page 47874]]
provide cash awards and incentives in recognition of employee efforts
and performance, and can help with employee recruitment and retention.
CTMS recognition payments serve the same purposes, but under the
overall approach to talent management and compensation under CTMS. DHS
uses recognition payments to recognize and reward DHS-CS employees,
especially for their mission impact. The Title 5 authorities on which
CTMS recognition is based provide some of the existing Federal
compensation tools, which as discussed previously in III.B of this
document, are cumbersome to use, ineffective for constructing market-
sensitive compensation packages, and are not intended to form a
cohesive toolset. CTMS recognition payments combines and streamlines
these existing tools to align with the CTMS design and to allow for
greater flexibility and agility in providing competitive total
compensation packages.
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\143\ Under 5 U.S.C. 4502, an agency may provide a cash award up
to $10,000 or a cash award up to $25,000 with OPM approval for a
suggestion, invention, superior accomplishment, or other meritorious
effort.
\144\ Under 5 U.S.C. 4503, an agency may pay a cash award to an
employee who provides a suggestion, invention, superior
accomplishment, or other personal effort that contributes to the
efficiency, economy, or other improvement of Government operations
or achieves a significant reduction in paperwork, or performs a
special act or service in the public interest in connection with or
related to the employee's official employment.
\145\ Under 5 U.S.C. 4505a, an employee whose most recent
performance rating was at the fully successful level or higher may
be paid a cash award up to 10 percent of the employee's salary, or
up to 20 percent of the employee's salary if the agency determines
that exceptional performance by the employee justifies such an
award. Under 5 U.S.C. 5384, employees in SES positions may receive a
performance award for at least fully successful performance during
the employee's most recent performance appraisal. Such performance
awards are at least 5 percent, and up to 20 percent, of the
recipient's annual basic pay.
\146\ Under 5 U.S.C. 4507 and 4507a, employees in SES and SL/ST
may receive presidential ranks of meritorious executive or
distinguished executive or meritorious senior professional or
distinguished senior professional, and the recipient is entitled to
a cash award of 20 percent of the recipient's annual basic pay for
meritorious ranks and 35 percent of the recipient's annual basic pay
for distinguished ranks.
\147\ Under 5 U.S.C. 5753 an agency can provide a recruitment
incentive when a position is likely to be difficult to fill in the
absence of such a bonus. Under 5 U.S.C. 5753 an agency can provide a
relocation incentive when an individual is a newly appointed
employee or is a current employee and moves to a new position in the
same geographic area or must relocate to accept a position in a
different geographic area. Under 5 U.S.C. 5754, an agency can
provide a retention incentive to an employee when the unusually high
or unique qualifications of the employee or a special need of the
agency for the employee's services makes it essential to retain the
employee and the agency determines that, in absence of a retention
bonus, the employee would be likely to leave the Federal service; or
for a different position in the Federal service. Recruitment,
relocation, and retention incentives for an individual can be up to
25 percent of the recipient's annual basic pay, or up to 50 percent
of the recipient's annual basic pay with OPM approval.
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For recognition payments, DHS is establishing a maximum amount as a
percentage of a DHS-CS employee's salary because most of the Title 5
authorities, on which recognition payments are based, provide a limit
for cash payments as a percentage of annual basic pay. Performance-
based cash awards range from a minimum of 5 percent under 5 U.S.C. 5382
to a maximum of 20 percent under 5 U.S.C 4505a and 5382. Presidential
rank awards are either 20 percent or 35 percent, and recruitment,
relocation, and retention incentives have no minimum but have a maximum
of 25 percent without special approval. The maximum percentage amount
for these Title 5 awards and incentives, ranges from 20 percent to 50
percent, so DHS is establishing the percentage amounts for recognition
payments as up to 20 percent without special approval, and up to 50
percent with approval from the Secretary or the Secretary's designee.
Also, because recognition payments have budget implications, requiring
special approval for amounts exceeding 20 percent of a DHS-CS
employee's salary helps to ensure proper oversight of such additional
compensation.
DHS requires a service agreement as part of providing a recognition
payment for an incoming DHS-CS employee and may require a service
agreement as part of providing a recognition payment to a current DHS-
CS employee. See Sec. 158.632. Service agreements can help ensure DHS
gets, for a minimum amount of time, the benefit of the reasons DHS is
providing the recognition payment.
Also, acceptance of a recognition payment constitutes agreement for
Federal government use of any idea, method, device, or similar that is
the basis of the payment. See Sec. 158.632. This mirrors the
requirement in 5 U.S.C. 4502(c) that acceptance of a Title 5 cash award
constitutes an agreement that the use by the government of an idea,
method, or device for which the award is made does not form the basis
of a future claim of any nature against the government by the employee
or the employee's heirs or estate. As necessary, DHS may provide a
recognition payment to a former DHS-CS employee or to the legal heirs
or estate of a DHS-CS former employee in accordance with 5 U.S.C. 4505,
which provides for paying a Title 5 cash award to a former employee, or
the former employee's heirs or estate.
A recognition payment is not salary under CTMS nor basic pay for
purposes under Title 5, see Sec. 158.632, even if paid in an amount
that would have been salary but for an applicable salary limitation as
incorporated in a salary structure. Under 6 U.S.C. 658, compensation is
either salary or additional compensation, and CTMS recognition payments
are additional compensation. In cases where a DHS-CS employee's salary
is limited because of a CTMS salary limitation, DHS may determine that
the employee should instead receive a recognition payment as part of an
effort to ensure the individual's compensation is sufficiently
competitive for the individual's expertise and mission impact. Any such
payment, made in part to address a truncated salary, would be a
recognition payment, not salary, and therefore, not basic pay under
Title 5.
For DHS-CS employees, recognition payments are in lieu of the seven
types of Title 5 cash awards and incentives on which recognition
payments are based. See Sec. 158.632. DHS-CS employees and incoming
DHS-CS employees are ineligible for those seven types of cash awards
and incentives because recognition payments replace those types of
Title 5 awards and incentives for DHS-CS employees.
(b) CTMS Recognition Time-Off
CTMS recognition time-off is time-off from duty without charge to
leave or loss of compensation for use by the recipient within a
designated timeframe. See Sec. 158.633. CTMS recognition time-off is
based on Title 5 authorities providing time-off awards,\148\ which
provide paid time-off in recognition of employee efforts or
accomplishments. CTMS recognition time-off serves a similar purpose,
but under the overall approach to talent management and compensation
under CTMS. DHS uses recognition time-off to recognize and reward DHS-
CS employees, especially for their mission impact. CTMS recognition
time-off is similar to Title 5 time-off but is specific to CTMS and can
be an important part of a total compensation package for both
recruiting and retention.
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\148\ Under 5 U.S.C. 4503(e) and 5 CFR part 451.104, an agency
may grant employees time off from duty, without loss of pay or
charge to leave, as an award in recognition of superior
accomplishment or other personal effort that contributes to the
quality, efficiency, or economy of Government operations.
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As part of providing a DHS-CS employee recognition time-off, DHS
designates the timeframe for use of the time-off award. The designated
timeframe for recognition time-off may not exceed the equivalent of 26
biweekly pay periods, and all recognition time-off must also be
recorded in a timekeeping system to ensure accurate operation of
existing salary and leave administration procedures. See Sec. 158.633.
These requirements mirror procedures for use of Title 5 time-off awards
under 5 U.S.C. 4502(e).\149\ Twenty-six biweekly pay periods is one
calendar year for pay and leave administration purposes for Federal
employees.
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\149\ See also Timekeeper Instructions on Time Off Awards,
available at https://www.aphis.usda.gov/mrpbs/hr/pay_leave_tod/downloads/award_faq.pdf (last visited May 25, 2021).
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Also, as part of an offer for employment in the DHS-CS, DHS may
offer an incoming DHS-CS employee up to 40 hours of recognition time-
off for that new employee to use within the employee's first year of
employment in the DHS-CS. See Sec. 158.633. As part of recruiting new
DHS-CS employees, DHS may need to offer recognition time-off to ensure
that an individual's compensation package is sufficiently competitive
and to incentivize the individual to serve in the DHS-CS. DHS may
require a service agreement as part of providing recognition time-off
for an incoming DHS-CS employee.
Recognition time-off may not be converted to a cash payment or any
other type of time-off or leave with pay. See Sec. 158.633. This
requirement mirrors the same requirement for Title 5 time-off awards in
5 CFR 451.104(f) because an important feature of a time-off award is
that providing such awards does not require additional funding or cash
disbursement similar to a cash award.
[[Page 47875]]
A recognition time-off award is in lieu of time-off awards under
Title 5 on which recognition time-off is based. See Sec. 158.633. DHS-
CS employees and incoming DHS-CS employees are ineligible for those
Title 5 time-off awards because CTMS recognition time-off replaces
Title 5 time-off awards for DHS-CS employees.
(c) CTMS Honorary Recognition
As part of CTMS recognition, DHS may establish one or more honorary
recognition programs to provide honorary recognition to DHS-CS
employees. See 158.634. CTMS honorary recognition is based on honorary
recognition provided under the provisions of 5 U.S.C. 4503,\150\ which
describes how the head of an agency may incur necessary expense for the
honorary recognition of an employee for certain acts and contributions.
CTMS honorary recognition serves a similar purpose for DHS-CS
employees, but under the overall approach to talent management and
compensation under CTMS. DHS uses CTMS honorary recognition to
recognize and reward DHS-CS employees, especially for their mission
impact. CTMS honorary recognition is similar to Title 5 honorary
recognition but is specific to CTMS.
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\150\ Under 5 U.S.C. 4503, an agency may incur necessary expense
for the honorary recognition of an employee who provides a
suggestion, invention, superior accomplishment, or other personal
effort that contributes to the efficiency, economy, or other
improvement of Government operations or achieves a significant
reduction in paperwork, or performs a special act or service in the
public interest in connection with or related to the employee's
official employment.
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Unlike other CTMS recognition, a DHS-CS employee may be eligible to
receive both CTMS honorary recognition and any honorary recognition
under 5 U.S.C. 4503 and 5 CFR part 451. Some honorary recognition
programs developed under Title 5 authority are designed to recognize
employees hired and compensated using a variety of statutory
authorities. Thus, all eligible DHS employees, including DHS-CS
employees, covered by those Title 5 honorary recognition programs may
receive recognition under such programs. As with honorary recognition
under 5 U.S.C. 4503, DHS may incur necessary expenses for CTMS honorary
recognition. See Sec. 158.634.
5. Other Special Payments Under CTMS
Under the CTMS compensation system, DHS provides other types of
additional compensation in the form of professional development and
training, student loan repayments, payments for special working
conditions, and allowances in nonforeign areas. Offering allowances in
nonforeign areas is mandated by 6 U.S.C. 658 as a type of additional
compensation. Such allowances are not specific to CTMS and are provided
to DHS-CS employees under 5 U.S.C. 5941. The other types of additional
compensation are also not salary under CTMS nor basic pay for purposes
under Title 5. Under 6 U.S.C. 658, compensation is either salary or
additional compensation, and CTMS professional development and
training, CTMS student loan repayments, and CTMS special working
conditions, as well as allowances in nonforeign areas, are all
additional compensation.
These types of CTMS additional compensation, except allowances in
nonforeign areas, are specific to CTMS and are based on Title 5
authorities. As discussed previously in III.A.3 of this document, under
the Sec. 658 additional compensation authority DHS may combine and
streamline provisions of Title 5 regarding types of additional
compensation, as long as it is clear on which specific Title 5
provisions CTMS additional compensation is based. Sections 158.640-
158.642 lists the Title 5 authorities on which CTMS professional
development and training, student loan repayments, and payments for
special working conditions are based. Each of these other special
payments under CTMS is discussed subsequently.
(a) CTMS Professional Development and Training
Under CTMS, DHS provides DHS-CS employees with opportunities,
payments, and reimbursements for professional development and training.
See Sec. 158.640. CTMS professional development and training is based
on Title 5 provisions providing training and professional development
opportunities, payments, and reimbursements: 5 U.S.C. 3396 providing
sabbaticals,\151\ 5 U.S.C. 4107 providing academic degree
training,\152\ 5 U.S.C. 4109 providing expenses of training,\153\ 5
U.S.C. 4110 providing expenses of attendance at meetings,\154\ and 5
U.S.C. 5757 providing payment of expenses to obtain professional
credentials.\155\ Like these provisions of Title 5, CTMS professional
development and training provide professional development and training
opportunities, payments, and reimbursements for DHS-CS employees, but
under the overall approach to talent management and compensation under
CTMS. CTMS professional development and training is similar to the
training and professional development opportunities, payments, and
reimbursements under Title 5, but is specific to CTMS and tailored to
CTMS design. This type of compensation can be an important piece of a
total compensation package, especially for cybersecurity talent looking
to keep their expertise current and to acquire new skills.
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\151\ Under 5 U.S.C. 3396, an agency head may grant a career SES
employee a sabbatical not to exceed 11 months to permit that
employee to engage in study or uncompensated work experience that
will contribute to the employee's development and effectiveness.
\152\ Under 5 U.S.C. 4107, an agency may select and assign an
employee to academic degree training and pay or reimburse the costs
of that training.
\153\ Under 5 U.S.C. 4109, an agency may pay an employee while
the employee attends training and may pay or reimburse the employee
for all or a part of the necessary expenses of training, including
travel and per diem, moving expenses, tuition, books, and other
fees.
\154\ Under 5 U.S.C. 4110, an agency may pay for the expenses of
an employee attending certain meetings.
\155\ Under 5 U.S.C. 5757, an agency may pay the expenses of an
employee to obtain professional credentials.
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DHS provides CTMS professional development and training
opportunities, payments, and reimbursements in alignment with the CTMS
career development program described in Sec. 158.802 and discussed
subsequently. With the career development program, DHS guides the
career progression of DHS-CS employees, which includes enhancement of
qualifications, and ensures development of the collective expertise of
DHS-CS employees through continual learning. CTMS professional
development and training is one means of enhancing qualifications and
providing opportunities for continual learning.
DHS also provides CTMS professional development and training in
alignment with CTMS compensation strategy. CTMS professional
development and training is considered part of a total compensation
package for a DHS-CS employee, reflecting an understanding of the
concepts of total compensation and total rewards in alignment with the
CTMS compensation strategy. Professional development and training, even
those opportunities not assigned a specific monetary value, can be a
valuable part of an employment opportunity with the DHS-CS and a DHS-CS
employee's career progression.
CTMS policy will address eligibility criteria and requirements for
documenting the reason and basis for providing professional development
and training opportunities, payments, and reimbursements, among other
matters necessary for administering CTMS professional development and
training.
[[Page 47876]]
In addition to CTMS professional development and training, a DHS-CS
employee may receive training and professional development under the
provisions of Title 5 on which CTMS professional development and
training is based, if the employee is eligible under those provisions.
Many programs and courses developed under Title 5 authority are
intended for employees hired and compensated under several different
statutory authorities. Thus, all eligible DHS employees, including DHS-
CS employees, covered by such programs and courses may participate in
them.
(b) CTMS Student Loan Repayments
Under CTMS and in alignment with the CTMS compensation strategy,
DHS may provide a student loan repayment to a DHS-CS employee up to
$16,500 per employee per calendar year and a total of $90,000 per
employee. See Sec. 158.641. CTMS student loan repayments are based on
5 U.S.C. 5379, which provides student loan repayments to certain
Federal employees. CTMS student loan repayments serve the same purpose,
but under the overall approach to talent management and compensation
under CTMS. CTMS student loan repayments are similar to student loan
repayments under Title 5, but are specific to CTMS and tailored to CTMS
design.
While DHS offers CTMS student loan repayments under the authority
in 6 U.S.C 658, DHS provides CTMS student loan repayments in accordance
with 5 U.S.C. 5379 and 5 CFR part 537, with some exceptions. DHS
applies different maximum payment and cap amounts, different minimum
service period lengths, and expanded eligibility criteria from those
under 5 U.S.C. 5379 and 5 CFR part 537. The Title 5 student loan
repayment program is a useful tool in recruiting and retaining
employees, but the program must align with the approach to talent
management under CTMS and the CTMS compensation system, which aims to
address factors in DHS's challenges recruiting and retaining
cybersecurity talent. As discussed previously in III.B of this
document, the competitiveness of compensation, including total
compensation packages, is a main factor in DHS's challenges recruiting
and retaining cybersecurity talent. Therefore, DHS is including student
loan repayments under CTMS as a recruitment and retention tool and is
increasing the payment amount and cap amounts for CTMS student loan
repayments.
For CTMS student loan repayments, DHS is setting the maximum
payment amounts to reflect the increased costs of higher education
since Congress last amended the maximum rates under 5 U.S.C. 5379.
Student loan repayments under 5 U.S.C. 5379 are capped at $10,000 per
employee per year and $60,000 total per employee.\156\ This statutory
authority was originally enacted in 1990 and was originally capped at
$6,000 per employee per year and $40,000 total per employee.\157\ In
2003, Congress increased the payment caps to $10,000 per employee per
year and $60,000 total per employee in a stand-alone Act for the sole
purpose of increasing the cap.\158\ In increasing the annual cap by 67
percent \159\ and the aggregate cap by 50 percent \160\ (effective
January 2004), Congress stated that the purpose of the 2003 cap
increase was to ``reflect[ ] an increase in annual college tuition
costs since the enactment of the original statute in 1991.'' \161\
Congress has not updated the cap amount since 2003,\162\ and Congress
also did not provide specific data for the increase in annual college
tuition costs in 2003.
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\156\ 5 U.S.C. 5379(b)(2).
\157\ Public Law 101-510, Sec. 1206(b)(1) (Nov. 1990).
\158\ Public Law 108-123, Sec. 2 (Nov. 2003); see also, Public
Law 108-136 Sec. 1123(a) (Nov. 2003) (providing a duplicative
increase from $6,000 to $10,000 per year).
\159\ $10,000 (Title 5 student loan repayment annual cap in
2003)-$6,000 (Title 5 student loan repayment annual cap in 1990) =
$4,000; $4,000 / $6,0000 = 66.67%.
\160\ $60,000 (Title 5 student loan repayment aggregate cap in
2003)-$40,000 (Title 5 student loan repayment aggregate cap in 1990)
= $20,000; $20,000 / $40,000 = 50%.
\161\ S. Rep. 108-109, Report Together with Additional View of
the Committee on Governmental Affairs United States Senate to
accompany S. 926, ``To Amend Section 5379 of Title 5, United States
Code, to Increase the Annual and Aggregate Limits on Student Loan
Repayments by Federal Agencies,'' (July 21, 2003), 1.
\162\ The student loan repayment authority in 5 U.S.C. 5379 was
last amended in 2008 to include parts of the legislative branch in
the definition of ``agency,'' but the cap was not addressed. Public
Law 110-437, Sec. 502 (Oct. 2008). See also Public Law 106-398, Sec.
1122(a) (Oct. 2000) (updating definition of ``student loan'' in the
first amendment to the student loan repayment authority since
enactment).
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Under Sec. 158.641, the annual cap for CTMS student loan
repayments is $16,500 and the aggregate cap is $90,000, in alignment
with Congress' last cap increase in 2003. Based on the U.S. Bureau of
Labor Statistics Consumer Price Indexes for Tuition and Fees,\163\
college tuition and fixed fees increased 129 percent from 1990, when
the authority for student loan repayments was originally enacted, to
2003, when Congress increased the payment caps.\164\ Therefore,
Congress increased the annual payment cap 67 percent and the aggregate
payment cap 50 percent when costs of higher education had increased 129
percent (from 1990 to 2003). From 2003 to 2020, college tuition and
fixed fees increased 125 percent.\165\ It follows that because such
costs have increased another 120 percent (from 2003 to 2020), the caps
could similarly be increased again another 67 percent and 50 percent,
respectively. As such, the CTMS student loan repayment amount per
employee per year may be up to $16,500 (a 65 percent increase to have a
dollar amount rounded to the nearest 500 for the cap amount) \166\ and
the CTMS student loan repayment amount total per employee may be up to
$90,000 (a 50 percent increase).\167\ See Sec. 158.641.
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\163\ Available at https://www.bls.gov/cpi/factsheets/college-tuition.htm (last visited May 25, 2021).
\164\ The index for January 1990, the first month of the year
the student loan repayment authority was enacted, was 169.8, and for
January 2003, when Congress increased the payment caps, was 388.6,
for a total percent change of 129 percent (388.6-169.8 = 218.8;
218.8 / 169.8 = 128.9%). U.S. Bureau of Labor Statistics, ``College
tuition and fees in U.S. city average, all urban consumers, not
seasonally adjusted'' available at https://data.bls.gov/timeseries/CUUR0000SEEB01?output_view=data (last visited May 25, 2021).
\165\ The index for January. 2003, when Congress increased the
payment caps for student loan repayments, was 388.6, and in January.
2020, was 874.769, for a total percent change of 125 percent
(874.769-388.6 = 486.169; 486.169 / 388.6 = 125.1%). Id.
\166\ If increasing the annual cap amount by 67%, the CTMS
student loan repayment per employee annual cap would be $16,700
($10,000 x 67% = $6,700; $10,000 + $6.700 = $16,700). Rounding
$16,700 to the nearest 500 results in $16,500, which is a 65%
increase ($16,500 (CTMS student loan repayment per employee annual
cap)-$10,000 (Title 5 student loan repayment annual cap since 2003)
= $6,500; $6,500 / $10,000 = 65%).
\167\ $90,000 (CTMS student loan repayment per employee
aggregate cap)-$60,000 (Title 5 student loan repayment aggregate cap
since 2003) = $30,000; $30,000 / $60,000 = 50%.
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Each DHS-CS employee receiving a CTMS student loan repayment must
have a service agreement with a minimum service period, but unlike
under Title 5 there is no standard length of minimum service period.
See Sec. 158.641. Instead the length of minimum service periods will
be determined under CTMS policy and based on the amount of the
repayment to provide flexibility to match the service period to the
loan repayment amount. Currently, an employee receiving a student loan
repayment under 5 U.S.C. 5379 must have a service agreement and that
service agreement must be a minimum of three years, regardless of the
amount of repayment.
Because CTMS is a different approach to talent management and the
CTMS compensation system is a wholly different approach to compensating
[[Page 47877]]
employees, DHS expects to use CTMS student loan repayments differently,
and expects to need more flexibility regarding minimum service periods
when considering the total compensation packages of individuals. This
includes adjusting the minimum service period in relationship to the
amount of student loan repayment provided. As such, under Sec.
158.641, DHS may set minimum service periods for CTMS student loan
repayments commensurate with the repayment amount.
All DHS-CS employees, except those providing uncompensated service
and DHS advisory appointees, may be eligible to receive a CTMS student
loan repayment. See Sec. 158.641. This includes DHS-CS employees
serving in a renewable appointment, which as discussed previously is a
time-limited appointment to a qualified position. Under 5 CFR
537.104(a), only some employees serving in time-limited appointments
can be eligible for Title 5 student loan repayments, and the duration
of appointment is a factor. Because appointment under CTMS differ from
appointments under Title 5 in types, purposes, and durations, a CTMS
student loan repayment is available to eligible DHS-CS employees in
renewable appointments. Note, however, that DHS ensures that a service
agreement minimum service period does not exceed a DHS-CS employee's
appointment duration.
Other eligibility for a student loan repayment under Sec. 158.641
aligns with eligibly criteria under 5 U.S.C. 5379 and 5 CFR part 537.
As such, a DHS-CS employee is ineligible to receive a CTMS student loan
repayment if DHS determines the employee's performance is unacceptable,
as defined in 5 U.S.C. 4301(3), or the employee receives an
unacceptable rating of record, or DHS determines the employee has
engaged in misconduct. See Sec. 158.641. CTMS policy will address
other eligibility criteria for CTMS loan repayments.
CTMS policy will also address requirements for documenting the
reason and basis for providing a CTMS student loan repayment,
appropriate levels of review and approval, among other matters
necessary for administering CTMS student loan repayments.
(c) CTMS Special Working Conditions Payments
Under CTMS, another type of additional compensation that is
available to DHS-CS employees is a payment for special working
conditions. A payment for special working conditions is a payment of up
to 25 percent of the receiving DHS-CS employee's salary as computed for
a designated work period or series of work periods. See Sec. 158.642.
A CTMS payment for special working conditions is based on Title 5
authorities providing several types of payments: 5 U.S.C. 5545
providing night, standby and hazardous duty differentials,\168\ 5
U.S.C. 5546 providing pay for Sunday and holiday work,\169\ and 5
U.S.C. 5757 providing extended assignment incentives.\170\ See Sec.
158.642. These Title 5 authorities compensate Federal employees for
work performed at night, on Sundays and holidays, for standby duty
requiring employees to remain at or within the confines of employees'
duty stations, for the performance of hazardous duty or duty involving
physical hardship, and for extended assignments in atypical
locations.\171\ These Title 5 authorities provide compensation for
special or nonregular working conditions, and CTMS special working
conditions payments serve that same purpose for the DHS-CS, but under
the overall approach to talent management and compensation under CTMS.
DHS uses special working conditions payments to address special working
conditions that are specific to cybersecurity work. The Title 5
authorities on which CTMS recognition is based provide some of the
existing Federal compensation tools, which as discussed previously in
III.B of this document, are cumbersome to use, ineffective for
constructing market-sensitive compensation packages, and are not
intended to form a cohesive toolset. Additionally, these Title 5
authorities do not effectively account for the unpredictable nature of
cybersecurity work, including specific conditions DHS-CS employees may
encounter. CTMS special working conditions payments combine and
streamline these existing tools to align with the CTMS design,
including the CTMS compensation and salary systems. CTMS special
working conditions payments allow for greater flexibility and agility
than the Title 5 tools in providing competitive compensation,
especially for conditions specific to cybersecurity work that are
insufficiently accounted for in a DHS-CS employee's salary.
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\168\ Under 5 U.S.C. 5545, an employee is entitled to receive an
additional 10 percent of the employee's basic pay for regularly
scheduled work between 6pm and 6am, an additional percentage up to
25 percent of the employee's basic pay for regularly scheduled
standby duty, and a differential up to 25 percent of the employee's
basic pay for certain duty involving unusual physical hardship or
hazard.
\169\ Under 5 U.S.C. 5546, an employee is entitled to receive an
additional 25 percent of the employee's basic pay for regularly
scheduled work on a Sunday and an additional 100 percent of the
employee's basic pay for certain work performed on a Federal
holiday.
\170\ Under 5 U.S.C. 5757, an agency may pay an employee a
payment of 25 percent of the employee's basic pay or $15,000,
whichever is greater, to retain that employee for a longer period in
certain locations.
\171\ U.S. Office of Personnel Management websites: Pay & Leave:
Pay Administration ``Fact Sheet: Premium Pay (Title 5),'' https://www.opm.gov/policy-data-oversight/pay-leave/pay-administration/fact-sheets/premium-pay-title-5/ (last visited May 25, 2021); Frequently
Asked Questions: Pay & Leave ``Hazardous Duty Pay,'' https://www.opm.gov/FAQS/topic/payleave/index.aspx?cid=c4c7e7ca-48be-4650-bbc8-6ec08e8fd479 (last visited May 25, 2021); Policy, Data,
Oversight: Pay & Leave ``Fact Sheet: Extended Assignment
Incentives,'' https://www.opm.gov/policy-data-oversight/pay-leave/pay-administration/fact-sheets/extended-assignment-incentives/ (last
visited May 25, 2021).
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DHS provides any special working conditions payments under a
special working conditions payment program. See Sec. 158.642. A
special working conditions program addresses special working conditions
or circumstances that are otherwise unaccounted for or the Department
determines are accounted for insufficiently in DHS-CS employees' other
types of additional compensation and salary. DHS aims to provide DHS-CS
employees with sufficiently competitive compensation, and DHS
anticipates that working conditions may emerge that DHS may not have
sufficiently accounted for in DHS-CS employees' compensation,
especially their salaries. A special working conditions payments
program enables DHS to adjust the additional compensation of DHS-CS
employees to specifically address working conditions that DHS had not
previously anticipated and accounted for, or DHS determines have been
insufficiently accounted for, in DHS-CS employees' salaries.
Special working conditions under Sec. 158.642 include when a
supervisor or other appropriate official requires a DHS-CS employee to
perform cybersecurity work determined to involve unusual physical or
mental hardship, or performing work at atypical locations, at
unexpected times, or for an uncommon duration of time exceeding the
expectation that all DHS-CS employees occasionally work unusual hours
and extended hours, as needed, to execute DHS's cybersecurity mission.
See Sec. 158.642. For example, several DHS-CS employees with expertise
in cybersecurity incident response might be required to work a
substantial amount of time, including at night and beyond their minimum
hours of work, in response to a cybersecurity incident affecting
critical infrastructure. DHS might establish a special working
conditions payment program to cover such conditions and provide
payments
[[Page 47878]]
to acknowledge the special conditions as well as the mission impact of
employees required to perform work under such conditions. Special
working conditions may also involve both unusual physical or mental
hardship and performing work such that it exceeds the expectation of
occasionally working unusual and extended hours.
DHS establishes any special working conditions program in alignment
with the CTMS compensation strategy and determines whether to
establish, adjust, or cancel a special working conditions payment
program based on information from the CTMS work scheduling system and
strategic talent planning. See Sec. 158.642. Using information from
the work scheduling system ensures that a determination about a special
working conditions program is made with an understanding of hours
worked by DHS-CS employees and potential divergence from expected
schedules. The CTMS compensation strategy, together with the talent
market analysis from strategic talent planning, ensures that a special
working conditions payment program reflects information about current
compensation practices of other cybersecurity employers. See Sec.
158.642. Given the ever-evolving nature of cybersecurity work, fierce
competition for cybersecurity talent, and variety of compensation
practices used by private sector cybersecurity employers, discussed
previously in II.B of this document, DHS needs the flexibility to
analyze the working conditions of DHS-CS employees as they arise, and
if necessary, address them by providing additional compensation.
For special working conditions payments, DHS is establishing a
maximum amount as a percentage of a DHS-CS employee's salary computed
for a work period or series of work periods because the Title 5
authorities, on which special working conditions payments are based,
all provide a limit for cash payments as a percentage of annual basic
pay computed as an hourly rate. The percentage of basic pay under these
Title 5 authorities is: 10 percent for nightwork; up to 25 percent for
standby duty and for performance of hazardous duty or duty involving
physical hardship; 25 percent for Sunday work; 25 percent for extended
assignments; and 100 percent for holiday work.\172\ These percentages
range from 10 percent to 100 percent, with most maximum percentages as
25 percent or up to 25 percent, so DHS is establishing the percent
amount for a special working conditions payment as up to 25 percent.
Additionally, DHS applies the 25 percent maximum for a special working
conditions payment based on computing the receiving DHS-CS employee's
salary for a work period, which as defined in Sec. 158.705 is the
equivalent of a biweekly pay period. DHS applies the payment maximum in
this manner because administration of payments under the Title 5
authorities, on which special working conditions payments are based,
involves computation of the receiving employees' basic pay for a
specific time-period, usually on an hourly basis.
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\172\ 5 U.S.C. 5545-5546.
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DHS determines eligibility for a payment for special working
conditions under Sec. 158.642 and CTMS policy. Under Sec. 158.642, if
a DHS-CS employee receives a payment for special working conditions,
the employee is not automatically eligible or entitled to receive any
additional such payments. Also, a DHS-CS employee receiving a salary
equal to or greater than EX-IV is ineligible to receive a payment under
this section. This ineligibility reflects that such additional payments
are not necessary for DHS-CS employee receiving high salaries, and it
also mirrors restrictions in Title 5 that make Federal employees
receiving salaries under Title 5 greater than EX-IV ineligible for
certain types of Title 5 additional compensation.\173\ CTMS policy will
address other eligibility criteria for CTMS special working conditions
payment.
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\173\ See 5 CFR 534.408 (prohibiting members of the SES from
receiving Title 5 premium pay, including overtime pay, and
compensatory time in lieu of overtime may).
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In addition to eligibility criteria, CTMS policy implementing the
special working conditions payment program will address requirements
for documenting the reason and basis for providing a special working
conditions payment, and appropriate approval authorities, among other
matters necessary for establishing and operating the program. See Sec.
158.642.
A special working conditions payment is in lieu of the types of
Title 5 payments on which it is based. See Sec. 158.642. DHS-CS
employees are ineligible for those types of Title 5 payments because
special working conditions payments replace those types of Title 5
payments for DHS-CS employees. Additionally, some of those types of
Title 5 payments are considered premium pay and, as discussed
previously, Title 5 premium pay generally does not apply under CTMS.
(d) CTMS Allowances in Nonforeign Areas
Another type of additional compensation available to DHS-CS
employees is an allowance in nonforeign areas under 5 U.S.C. 5941. See
Sec. 158.643. Section 5941 provides a cost of living allowance for
certain Federal employees stationed outside of the continental United
States or in Alaska and such an allowance can be up to 25 percent of
the receiving employee's basic pay. As discussed previously in III.C.3
of this document, 6 U.S.C. 658(b)(3)(B) mandates this type of
additional compensation, and also mandates that employees in qualified
positions are eligible for such allowances under 5 U.S.C. 5941 on the
same basis and to the same extent as if the employees were covered
under section 5941, including eligibility conditions, allowance rates,
and all other terms and condition in law or regulation. CTMS does just
that in Sec. 158.643, which states a DHS-CS employee is eligible for
and may receive an allowance under 5 U.S.C. 5941 and implementing
regulations in 5 CFR part 591, subpart B on the same basis and to the
same extent as if the employee is an employee covered by those
authorities.
6. Other Compensation Provided in Accordance With OPM Regulations
Under the CTMS compensation system, DHS is providing DHS-CS
employees other types of additional compensation, including leave and
other benefits. While DHS offers these other types of additional
compensation under the authority in 6 U.S.C 658, DHS provides them in
accordance with relevant provisions of other laws that apply to most
Federal civil service employees. Many of these other types of
additional compensation were established for Federal civilian employees
decades ago for purposes still relevant to the talent management
approach under CTMS, and these other types of additional compensation
are administered using well-established processes DHS does not need to
adjust for CTMS. As such, in Sec. Sec. 158.650, 158.652, and 158.653,
DHS provides DHS-CS employees holidays, compensatory time-off for
religious purposes, and traditional Federal employee benefits,
including retirement, health benefits, and insurance programs, as well
as transportation subsidies, in accordance with relevant provisions in
Title 5.
In Sec. 158.651, for leave under CTMS, DHS provides DHS-CS
employees all the types of leave available to other Federal employees,
including annual
[[Page 47879]]
leave, sick leave, family and medical leave, and other paid leave, in
accordance with 5 U.S.C. Chapter 63 and 5 CFR part 630. Although DHS
provides leave for DHS-CS employees in accordance with these provisions
of law, DHS modifies application of those laws regarding annual leave
accumulation to maintain the integrity of CTMS and consistency of the
approach to talent management under this part.
For annual leave accumulation under CTMS, DHS will determine DHS-CS
employees accumulation amounts under 5 U.S.C. 6304, which permits most
Federal employees to accumulate 30 days of annual leave in one year and
certain Federal government senior employees, including employees in SL/
ST and SES positions, to accumulate 90 days of annual leave in one
year.\174\ Under this Title 5 annual leave accumulation structure, the
90-day annual leave accumulation amount is reserved for certain
employees, including employees in SL/ST and SES positions, with salary
rates that exceed 120 percent of GS-15.
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\174\ Under 5 U.S.C. 6304, other Federal employees stationed
outside of the United States can accumulate 45 days of annual leave.
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Under CTMS, DHS may apply a 90-day accumulation amount to DHS-CS
employees receiving a salary that exceeds 120 percent of GS-15. See
Sec. 158.651. As discussed previously in III.A.3 of this document, a
qualified position is comparable to SL/ST and SES positions, and as
such DHS could apply a 90-day accumulation amount to all DHS-CS
employees. DHS is not doing this, however, because a higher
accumulation amount has potential implications for paying out leave
when an employee separates from Federal service. Instead, DHS is
mirroring the Title 5 accumulation structure by reserving the 90-day
accumulation amount for DHS-CS employees receiving a salary at or above
the minimum salary for SL/ST and SES positions.
DHS administers leave under CTMS in accordance with relevant
provisions of other laws referenced in Sec. Sec. 158.651 and 158.655
and in CTMS policy implementing leave for DHS-CS employees. As such, in
accordance with 5 U.S.C. 6308, annual leave and sick leave accrued to
the credit of a current Federal employee who is appointed to a
qualified position without a break in service of more than three
calendar days will be transferred to the employee's credit, and any
leave balance for a DHS-CS employee departing the DHS-CS will be
addressed in accordance with 5 CFR 630.209 and 630.501. See Sec.
158.651.
In Sec. 158.654, DHS is providing DHS-CS employees other types of
payments, including severance pay, lump-sum leave pay outs, voluntary
separation incentive payments, reservist differentials, and other
similar allowances, differentials, and incentives, in accordance with
relevant provisions of other laws governing those types of payments. To
ensure DHS can offer any other type of additional compensation that
becomes available to Federal civil service employees in the future,
Sec. 158.654 states that DHS will also provide other payments similar
to those listed in Sec. 155.654 and described in CTMS policy as being
authorized under this part and provided in accordance with relevant
provisions of other laws.
Although DHS provides the types of payments listed in Sec. 158.654
in accordance with relevant provisions of other laws under the
authority in 6 U.S.C. 658, DHS may need to modify application of those
relevant provisions of law to maintain the integrity of CTMS and
consistency of the approach to talent management under this part. This
is because some of the terms used in the relevant provisions of law are
not used under CTMS, or a different term is used, and DHS may have to
extrapolate between the terms in the relevant provision of law and CTMS
concepts. For example, CTMS includes a ``part-time schedule'' and
``contingent schedule,'' but Title 5 does not use such terms.
Section 158.655 lists several clarifications for how CTMS terms and
concepts relate to relevant provisions of other laws. For example,
Sec. 158.655 explains a ``part-time schedule'' and ``contingent
schedule'' are treated as ``part-time career employment'' and
``intermittent employment,'' respectively, as defined in Title 5.
Section 158.655 also explains that for purposes of compensation
administration authorized under Sec. Sec. 158.650-158.654, DHS may
convert the salary of a DHS-CS employee into an hourly rate, biweekly
rate, or other rate and administer compensation based on consideration
of the DHS-CS employee's work schedule. To ensure accurate
administration of compensation, including leave, for DHS-CS employees
in accordance with relevant provisions of Title 5, DHS may need to
account for and record leave and other compensation earned and charged
on an hourly basis.\175\
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\175\ See e.g., 5 U.S.C. 5504 (providing computation of pay for
biweekly pay periods); 5 CFR 630.206 (establishing a minimum charge
for leave as one hour); U.S. General Accounting Office, Maintaining
Effective Control over Employee Time and Attendance Reporting, GAO-
03-352G (Jan. 2003), 6 (``Most federal civilian employees are paid
on an hourly basis (or fractions of an hour) and earn and charge
leave on that basis . . . . To provide a basis for pay, leave, and
benefits, the records [of the time an employee works] should include
aggregate regular time, other time (e.g., overtime credit hours or
compensatory time off), and leave'').
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Also, Sec. 158.655 clarifies that if, in administering
compensation under Sec. Sec. 158.650-158.654, DHS determines it is
necessary to clarify the relationship between those sections and the
relevant provisions of law referenced in those sections and any other
relevant provisions of other laws, DHS will address the issue in new or
revised CTMS policy. Thus, if DHS needs to modify application of those
relevant provisions of law relating to compensation for the DHS-CS to
maintain the integrity of CTMS and consistency of the approach to
talent management under this part, DHS will capture any such modified
application in CTMS policy.
7. CTMS Aggregate Compensation Limit
The CTMS compensation system includes the CTMS aggregate
compensation limit, which restricts certain additional compensation a
DHS-CS employee may receive in a calendar year. See Sec. 158.604.
Under CTMS, a DHS-CS employee's aggregate compensation is the
employee's salary plus certain types of CTMS additional compensation.
The aggregate compensation limit prohibits a DHS-CS employee from
receiving any portion of a payment for certain types of CTMS additional
compensation if that portion would cause the employee's aggregate
compensation to exceed the limit.
The CTMS aggregate compensation limit implements the additional
compensation authority in 6 U.S.C. 658(b)(3) regarding the level
authorized for such compensation. As discussed previously in III.A.3 of
this document, DHS interprets this additional compensation authority to
mean that CTMS additional compensation is subject to the aggregate
compensation cap in 5 U.S.C. 5307. As also discussed in III.A.3 of this
document, this Title 5 aggregate compensation cap has two cap amounts,
and the Secretary has discretion for how to apply the two cap amounts
to CTMS additional compensation. DHS is applying both cap amounts as
the CTMS annual aggregate compensation limit.
The CTMS aggregate compensation limit is one of the two amounts
referenced in 5 U.S.C. 5307(d)(1): EX-I ($221,400 in 2021) or the Vice
[[Page 47880]]
President's salary amount ($255,800 in 2021). See Sec. 158.604. CTMS
additional compensation when added to salary of a DHS-CS employee may
not cause that employee's aggregate compensation to exceed either EX-I
or the Vice President's salary, whichever is applicable to that
employee.
The applicable CTMS aggregate compensation limit amount for a DHS-
CS employee depends on the salary subrange for that individual's salary
and the aggregate compensation amount assigned to that subrange. DHS
will apply the CTMS aggregate compensation limit amounts in ascending
order to the subranges in a CTMS salary structure. DHS will assign one
of the two limit amounts to each subrange in a CTMS salary structure
such that each subrange has an aggregate compensation limit that is
greater than or equal to the salary maximum of that subrange. For
example, a hypothetical subrange with a salary maximum of $225,000 is
assigned the aggregate compensation limit of the Vice President's
salary ($255,800 in 2021). A DHS-CS employee is not permitted to
receive payment of certain types of additional compensation if that
payment would cause the employee's aggregate compensation to exceed the
applicable limit amount for that employee.
Application of the CTMS aggregate compensation limit to DHS-CS
employee compensation is based on the Title 5 aggregate compensation
cap in 5 U.S.C. 5307 but is tailored to the CTMS compensation system.
Under 5 U.S.C. 5307, an employee's aggregate compensation includes the
employee's salary, plus any locality-based comparability payments, and
certain types of additional compensation under Title 5.\176\ A DHS-CS
employee's aggregate compensation is the employee's salary, including
any LCTMS, and certain types of additional compensation. See Sec.
158.604. Like locality-based comparability payments under 5 U.S.C.
5304, which are subject to the Title 5 aggregate compensation cap,\177\
a LCTMS is considered part of a DHS-CS employee's salary for purposes
of applying the CTMS aggregate compensation limit.
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\176\ See also 5 CFR 530.202, definition of aggregate
compensation.
\177\ 5 CFR 530.202, definition of basic pay.
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The types of CTMS additional compensation subject to the CTMS
aggregate compensation limit are similar to or are the same types of
compensation covered by the Title 5 aggregate compensation cap. The
types of CTMS additional compensation considered part of a DHS-CS
employee's aggregate compensation, and subject to the applicable
aggregate compensation cap, are: Recognition payments, payments for
special working conditions, payments for certain allowances and
differentials under CTMS, and other similar payments described in CTMS
policy. See Sec. 158.604.
Recognition payments, which are based on awards and incentives
under Title 5, are subject to the CTMS aggregate compensation limit,
and this mirrors how Title 5 treats those awards and incentives under
the Title 5 annual aggregate compensation cap.\178\ A recognition
payment for a DHS-CS employee may be truncated if it would cause the
employee's aggregate compensation to exceed the CTMS aggregate
compensation limit applicable to that employee. In such a scenario, the
DHS-CS employee forfeits any portion of a payment causing the
employee's aggregate compensation to exceed that limit. See Sec.
158.604.
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\178\ 5 CFR 530.202, definition of aggregate compensation
paragraphs (4)-(5); and 5 CFR 451.304(c).
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Special working conditions payments are also subject to and may be
limited by the CTMS aggregate compensation limit. See Sec. 158.542. As
discussed previously, special working conditions payments are based on
Title 5 authorities providing several types of payments, which are
subject to the Title 5 aggregate compensation cap.\179\ Some of the
types of payments listed in Sec. 158.654, which are provided in
accordance with OPM regulations, are also subject to and may be limited
by the CTMS aggregate compensation limit, which aligns with how these
other payments are treated under the Title 5 aggregate compensation
cap.\180\
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\179\ 5 CFR 530.202, definition of aggregate compensation
paragraph (3).
\180\ 5 CFR 530.202, definition of aggregate compensation.
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Aggregate compensation under CTMS excludes all other CTMS
additional compensation, which mirrors application of the Title 5
aggregate compensation cap. CTMS professional development and training
opportunities, payments, and reimbursements are excluded from the CTMS
aggregate compensation limit, which mirrors how Title 5 training and
professional development is treated under the Title 5 aggregate
compensation cap.\181\ CTMS student loan repayments are also excluded
from the CTMS aggregate compensation limit because student loan
repayments under Title 5 are not part of aggregate compensation under
Title 5.\182\ Also, CTMS allowances in nonforeign areas, which will be
provided on the same basis as the same allowance under Title 5, are not
subject to the CTMS aggregate compensation limit because Title 5
allowances in nonforeign areas are excluded from the Title 5 aggregate
compensation limit.\183\
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\181\ Id.
\182\ Id. paragraph (14)(v).
\183\ Id paragraph (14)(vi).
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The main difference between the CTMS aggregate compensation limit
and the Title 5 aggregate compensation cap, other than the necessary
differences to tailor it to the CTMS compensation system, is that the
CTMS aggregate compensation limit is a true limit. Once a DHS-CS
employee's aggregate compensation reaches the applicable limit amount
for that employee, any unpaid amounts of those types of additional
compensation subject to the aggregate compensation limit do not roll
over into the next calendar year. Under the Title 5 aggregate
compensation cap, amounts of similar additional compensation under
Title 5 that would cause the employee's aggregate compensation to
exceed the cap are unpayable in that calendar year but become payable
in the next calendar year.\184\ Under the CTMS aggregate compensation
cap, a DHS-CS employee may not receive any portion of a payment for
additional compensation subject to the applicable aggregate
compensation limit that would cause the employee's aggregate
compensation in any calendar year to exceed that limit amount, and the
DHS-CS employee forfeits any such portion of a payment. See Sec.
158.604.
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\184\ See 5 CFR 530.204.
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If DHS underestimates or overestimates a DHS-CS employee's
aggregate compensation in a calendar year, DHS may make a corrective
action. See Sec. 158.604. Such a corrective action would be necessary
if an applicable limit amount changed, resulting in a DHS-CS employee
receiving some additional compensation in excess of the applicable
limit amount for that employee. A corrective action would also be
necessary if DHS limited or prohibited an employee's aggregate
compensation incorrectly. Corrective actions may include the Secretary
or designee waiving a debt to the Federal government for a DHS-CS
employee under 5 U.S.C. 5584, if warranted, or making appropriate
corrective payments to a DHS-CS employee.
F. Deploying Talent: Subpart G
Subpart G Deploying Talent, includes regulations addressing the
CTMS deployment program. Under the
[[Page 47881]]
deployment program, DHS determines whether DHS needs to use CTMS to
recruit and retain individuals possessing CTMS qualifications. See
Sec. 158.701. The process of designating qualified positions involves
determining both when DHS organizations need individuals with CTMS
qualifications and when using CTMS would likely enhance recruiting and
retaining those individuals.
Under the deployment program, DHS also operationalizes aspects of
other CTMS elements. See Sec. 158.701. The deployment program
operationalizes aspects of the work valuation system by documenting
applicable work and career structures for qualified positions and
assignments.
The deployment program operationalizes aspects of the talent
acquisition system by providing requirements for documenting qualified
positions established under the talent acquisition system and for
matching newly hired DHS-CS employees with initial assignments. Under
the deployment program, DHS also determines operational aspects of a
newly appointed DHS-CS employee's appointment and assignment, such as
the new employee's work schedule and duration of the assignment.
The deployment program operationalizes aspects of the compensation
system by providing requirements for determining a DHS-CS employee's
official worksite and work schedule, both of which relate to and affect
compensation for DHS-CS employees. Whether a DHS-CS employee is
eligible for a local cybersecurity market supplement as part of the
employee's salary depends on the employee's official worksite location,
as does a DHS-CS employee's eligibility for a CTMS allowance in
nonforeign areas. Additionally, DHS considers a DHS-CS employee's work
schedule when reviewing work conditions or circumstances that may
warrant providing a payment under the CTMS special working conditions
payment program. Administration of a DHS-CS employee's salary and leave
is also connected to the employee's work schedule and hours worked.
Because the deployment program operationalizes aspects of the work
valuation system, talent acquisition system, and compensation system,
Sec. 158.709 states that the provisions of law relating to
classification, appointment, and compensation listed in Sec. Sec.
158.405, 158.502 and 158.605 do not apply under CTMS, to the DHS-CS, or
to talent management under CTMS, including the CTMS deployment program.
1. CTMS Deployment Program
Under the CTMS deployment program, DHS sets out the procedures for
collaboration across DHS organizations to designate qualified positions
and designate and staff assignments, as well as procedures to determine
and document DHS-CS employees' official worksites, administer a work
scheduling system, and perform necessary recordkeeping. See Sec.
158.701.
Under the deployment program, DHS: Establishes procedures for
designating qualified positions in DHS organizations; designates and
staffs assignments; determines and documents a DHS-CS employee's
official worksite; administers a work scheduling system; and performs
necessary recordkeeping, including documenting qualified positions and
assignments. See Sec. 158.701. Each of these aspects of the deployment
program are discussed subsequently.
2. Designating Qualified Positions
Under the CTMS deployment program, DHS designates qualified
positions when one or more DHS organizations requires individuals with
CTMS qualifications to ensure the most effective execution of the DHS
cybersecurity mission and the recruitment and retention of such
individuals would be enhanced through use of CTMS. See Sec. 158.702.
DHS organizations have a range of existing talent management practices
they can use to hire, compensate, and develop talent under other
statutory authorities and Federal personnel systems. CTMS is
specifically designed to recruit and retain talent with CTMS
qualifications, so determining that such qualifications are needed by a
DHS organization is one factor indicating that using CTMS might benefit
the organization. In addition, CTMS features new talent management
practices specifically designed to address DHS's challenges recruiting
and retaining cybersecurity talent. For circumstances in which a DHS
organization is effectively recruiting and retaining certain
cybersecurity talent without CTMS, a shift to CTMS's new talent
management practices may not be necessary or efficient.
The process of designating qualified positions involves DHS
organizations requesting use of CTMS, following requirements for using
CTMS, and ensuring availability of information necessary to designate
qualified positions. See Sec. 158.702. DHS organizations considering
using CTMS must ensure they understand the specialized design of CTMS,
including differences from existing talent management practices;
identify how they anticipate using CTMS to address their unique
recruitment and retention challenges or goals; and consider their
organizational readiness to use CTMS to hire, compensate, and develop
DHS-CS employees. When first using CTMS, DHS organizations have to
address a variety of operational requirements, including determining
key officials for approval of talent management actions. CTMS policy
will address procedures for requesting use of CTMS, requirements for
DHS organizations using CTMS, and the necessary information for
designating qualified positions.
Designating qualified positions may result in establishing one or
more new qualified positions or identifying and staffing one or more
assignments, or both. See Sec. 158.702. As part of designating
qualified positions, DHS considers the collective expertise of DHS-CS
employees and the possibility of hiring new talent under the talent
acquisition system. DHS might identify one or more existing DHS-CS
employees with the CTMS qualifications needed for a new assignment or
assignments and who are available to match to the assignment or
assignments. Alternatively, DHS might decide to hire new talent with
the needed CTMS qualifications. In the process of hiring new talent,
DHS determines the number of new DHS-CS employees and the corresponding
work levels or combination of work levels necessary to satisfy the
talent need. For example, DHS might decide a particular talent need
could be addressed only by a new DHS-CS employee at the expert level.
DHS might determine that another talent need could be addressed either
by one new DHS-CS employee at the expert level or several new DHS-CS
employees at the entry level.
Because designating qualified positions may result in establishing
a new qualified position, designating qualified positions also involves
budget and fiscal considerations. See Sec. 158.702.
3. Designating and Staffing Assignments
The CTMS deployment program also establishes procedures for
designating and staffing DHS-CS assignments. See Sec. 158.703. DHS
designates assignments by defining combinations of DHS-CS cybersecurity
work and CTMS qualifications that can be associated with one or more
qualified positions. See Sec. 158.703. Designating assignments may
result from designating qualified positions, as discussed previously in
this document. CTMS policy will
[[Page 47882]]
address procedures for DHS organizations to designate assignments.
DHS staffs DHS-CS assignments by matching DHS-CS employees with
assignments, either as an initial assignment for an incoming DHS-CS
employee or a subsequent assignment for a current DHS-CS employee. See
Sec. 158.703. DHS matches a DHS-CS employee with an assignment based
on alignment of the employee's CTMS qualifications with the specific
subset of CTMS qualifications of an assignment. See Sec. 158.703.
For initial assignments, DHS matches an individual with an
assignment upon appointment to a qualified position based on such
alignment. When matching an individual with an initial assignment, DHS
may also consider input from the individual, input from DHS
organizations, mission-related requirements determined by DHS officials
with appropriate decision-making authority, and strategic talent
priorities set by CTMS leadership. Considering this other input and
information, in addition to CTMS qualifications, ensures the match
reflects the best fit for the individual and ensure DHS strategically
staffs assignments in alignment with priorities and goals for the DHS-
CS.
When matching a DHS-CS employee with a subsequent assignment, DHS
may also consider input from the employee; input from DHS
organizations, especially the primary DHS organization of the
employee's current assignment; information about the employee from the
CTMS performance management program and the CTMS career development
program; mission-related requirements; and strategic talent priorities.
See Sec. 158.703. Considering this other information and input in
matching DHS-CS employees with subsequent assignments ensures the match
reflects the best fit for the DHS-CS employee and the best use of the
DHS-CS employee's expertise to support the DHS cybersecurity mission.
DHS develops and continually updates strategies for communicating
with DHS-CS employees about subsequent assignment opportunities, in
alignment with the career development program and based on information
from development reviews. See Sec. 158.601. These strategies ensure
that DHS-CS employees have opportunities to express interest in
different cybersecurity work and DHS-CS assignments, including those
that may assist them in enhancing their qualifications, and helps to
foster a culture of continual learning within DHS-CS.
A DHS-CS employee may have multiple assignments throughout the
employee's service in a qualified position but only has one assignment
at a time. Under CTMS, DHS-CS employees may continue assignments for
years or shift assignments periodically to gain exposure to new work or
apply their qualifications in different mission areas. The number and
variety of assignments an employee has while in the DHS-CS will vary
based on that employee's interests, strategic talent priorities, and
how the employee's qualifications change over time.
A DHS-CS employee's subsequent assignments may have a different
primary DHS organization and worksite than the employee's initial
assignment. For example, a DHS-CS employee may have an initial
assignment in DHS OCIO, but later have a subsequent assignment in CISA.
While that DHS-CS employee's assignment and primary DHS organization
changes, the employee is still part of the DHS-CS and still has the
same qualified position.
Occasionally, if necessary, DHS may direct a subsequent assignment
for a DHS-CS employee. See Sec. 158.708. Certain directed subsequent
assignments expected to last six months or more require appropriate
notice and consultation with the affected DHS-CS employee. Directed
subsequent assignments expected to last less than six months is
considered temporary, and as such do not require the same formal notice
procedures.
For directed subsequent assignments expected to last six months or
more with an official worksite in the DHS-CS employee's current
commuting area, DHS provides the employee at least 30 calendar days
written notice. See Sec. 158.708. This timeframe is intended to
provide the DHS-CS employee with sufficient notice of the anticipated
change to consider and plan for associated adjustments to the
employee's commute and other work-related routines.
For directed subsequent assignments expected to last six months or
more with an official worksite outside of the DHS-CS employee's current
commuting area, DHS consults with that employee on the reasons for the
assignment and the employee's preferences regarding the proposed change
in assignment. See Sec. 158.708. DHS also provides that employee
written notice at least 90 calendar days before the effective date of
the directed subsequent assignment. This timeframe, modeled after
similar reassignments in the SES,\185\ is intended to provide the DHS-
CS employee with sufficient notice of the anticipated change to
consider and plan for significant associated adjustments, including
potential changes of residence and development of a new commute and
other work-related routines. The written notice requirements for
directed subsequent assignments can only be waived by the DHS-CS
employee matched to the assignment. For directed subsequent
assignments, DHS also pays or reimburses appropriate expenses under and
in accordance the Federal Travel Regulations at 41 CFR Chapter 301-302.
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\185\ 5 CFR 317.901 (providing 60-days notice for reassignments
outside of an employee's current commuting area). DHS has extended
the timeframe in recognition that CTMS will be used to manage all
DHS-CS employees, including individuals just beginning a career in
cybersecurity.
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4. Official Worksite
The CTMS deployment program includes the procedures for determining
and documenting official worksites for DHS-CS employees. See Sec.
158.704. Those procedures are modeled after 5 CFR 531.605, which
governs determining the official worksite for GS employees in
geographic areas defined for purposes of GS locality payments. Because
5 CFR 531.605 does not apply to DHS-CS employees, DHS is creating the
procedures in Sec. 158.704 through which DHS determines a DHS-CS
employee's official worksite for purposes of administering
compensation. A DHS-CS employee's official worksite is especially
important for determining eligibility for CTMS local cybersecurity
talent market supplements and CTMS allowances in nonforeign areas.
Under CTMS, a DHS-CS employee's official worksite is the geographic
location where the employee regularly performs cybersecurity work or
where the employee's cybersecurity work is based. In determining a DHS-
CS employee's official worksite, DHS considers telework, variation in
location where the employee performs cybersecurity work, or other
temporary situations affecting the location where the employee performs
cybersecurity work. Given the variety of work arrangements possible for
DHS-CS employees as they perform the work of their assignments, there
may be situations in which the location where a DHS-CS employee
performs work varies or is not consistent. In such cases, DHS may need
to review a DHS-CS employee's specific work arrangement to determine
the employee's official worksite.
DHS documents a DHS-CS employee's official worksite as part of
[[Page 47883]]
documenting the employee's appointment and updates that documentation
to reflect changes in the employee's official worksite, as necessary.
DHS documents changes in a DHS-CS employee's official worksite only
when such changes are expected to last, or do last, for six months or
more. Such changes expected to last less than six months are considered
temporary in alignment with the Federal Travel Regulations at 41 CFR
chapter 301. DHS addresses temporary changes, as necessary, using the
Federal Travel Regulations.
5. Work Scheduling
Under the CTMS deployment program, DHS is establishing and
administering a work scheduling system for DHS-CS employees. The CTMS
work scheduling system accounts for the unpredictable nature of
cybersecurity work. The work scheduling system also allows DHS to
ensure that the performance of cybersecurity work is not constrained or
impeded by rigid scheduling rules and structures designed for more
predictable types of work or for administration of types of
compensation, such as Title 5 premium pay and overtime pay under the
FLSA, that are not part of the CTMS compensation system.
The work scheduling system ensures agility for DHS in scheduling
cybersecurity work and the availability of DHS-CS employees to perform
the cybersecurity work associated with their assignments. See Sec.
158.705. The work scheduling system, including associated work schedule
types and requirements, enables scheduling the work of DHS-CS employees
with enough flexibility to address a variety of mission circumstances,
while also ensuring that DHS-CS employees are available to perform work
at required times. The work scheduling system also ensures clear
expectations for DHS-CS employees about when they are expected to
perform work and flexibility for DHS-CS employees in scheduling and
performing such work. See Sec. 158.705. Such flexibility for DHS-CS
employees allows DHS to offer a variety of work arrangements that may
appeal to cybersecurity talent. The work scheduling system provides DHS
organizations, DHS-CS employees, and their supervisors with options for
scheduling and performing work throughout a work period. These options
includes different types of schedules, procedures for determining and
updating a DHS-CS employee's work schedule, and requirements for
communicating about anticipated work hours to ensure DHS-CS employees
and their supervisors maintain a shared understanding of work schedules
and how employees' intend to meet work schedule requirements.
Additionally, the work scheduling system ensures accurate recording of,
accounting for, and monitoring of hours worked by DHS-CS employees as
required by applicable Federal personnel and payroll recordkeeping
standards. See Sec. 158.705.
CTMS includes new definitions specific to the CTMS work scheduling
system. For example, ``work period'' means a two-week period of 14
consecutive days that begins on a Sunday and ends on a Saturday, and is
the equivalent of a biweekly pay period. See Sec. 158.705.
Increasingly, existing Federal civilian compensation administration has
become linked to the biweekly pay periods and the CTMS work scheduling
system acknowledges this linkage between how DHS-CS employees perform
work and how they are compensated. Another example of a new definition
specific to the CTMS work scheduling system is ``minimum hours of
work,'' which means the minimum number of hours that a DHS-CS employee
is required to work, or account for with time-off, during a work
period, and is the equivalent to the term ``basic work requirement''
defined in 5 U.S.C. 6121. See Sec. 158.705. A DHS-CS employee's
minimum hours of work determines the employee's biweekly salary payment
for the applicable work period. A DHS-CS employee's minimum hours of
work depends on the employee's schedule.
The CTMS work scheduling system features three main types of
schedules: Full-time, part-time, and contingent. See Sec. 158.705. A
full-time schedule, which is 80 hours per work period, is most similar
to a full-time schedule under Title 5. A part-time schedule, which is a
specified number of hours less than 80 hours per work period, is most
similar to part-time career employment under Title 5. A contingent
schedule is an irregular number of hours up to 80 hours per work period
and is intended for cases when cybersecurity work is sporadic and
cannot be regularly scheduled in advance. A DHS-CS employee on a
contingent schedule does not have a minimum hours of work requirement,
but has a maximum number of 80 hours per work period and a maximum
number of total hours throughout the employee's appointment that is
determined at the time of appointment. A contingent schedule is most
similar to an intermittent schedule under Title 5. For DHS-CS employees
with both part-time and contingent schedules, DHS closely monitors
hours worked over time and considers, with input from the employee and
the employee's supervisor, whether changes to another schedule type are
necessary and appropriate.
A DHS-CS employee's work schedule, and any minimum hours of work,
is determined at the time of appointment and recorded as part of
documenting the employee's qualified position. See Sec. 158.705. A
DHS-CS employee's work schedule and minimum hours of work may change
during the employee's service in the DHS-CS and DHS records any such
updates in the documentation associated with the employee's qualified
position.
All DHS-CS employees are expected to perform DHS-CS cybersecurity
work associated with their assignments, especially in response to
exigent circumstances and emergencies, including cybersecurity
incidents. See Sec. 158.705. This may require cybersecurity work to be
performed at unexpected times or for more hours than the minimum number
of hours associated with the employees' schedules. Hours worked by a
DHS-CS employee that exceed that employee's minimum hours of work do
not affect the employee's salary nor result in any automatic
eligibility for or entitlement to compensation, including any type of
additional compensation. See Sec. 158.705.
DHS monitors the hours worked and reported by DHS-CS employees for
purposes of managing the DHS-CS, including considering any changes to
DHS-CS employees' schedules, and administering compensation, including
assisting in consideration of any payment under a CTMS special working
conditions program. See Sec. 158.705. As mentioned previously, DHS
considers a DHS-CS employee's work schedule when reviewing work
conditions or circumstances that may warrant providing a payment under
a special working conditions payment program.
DHS-CS employees with full-time and part-time schedules are
expected to work at least their minimum hours of work. See Sec.
158.705. If the hours actually worked by the employee are less than the
employee's minimum hours of work, the employee must use time-off or
must be placed in an appropriate non-pay status to account for the
difference between hours actually worked by the employee and the
employee's minimum hours of work.
A DHS-CS employee's hours worked directly impacts the employee's
compensation. A DHS-CS employee's hours worked is important for salary
administration generally and is a factor in providing CTMS special
working
[[Page 47884]]
conditions payments, holidays, leave, and compensatory time-off for
religious purposes. See Sec. 158.705. In alignment with the CTMS
compensation strategy, the CTMS work scheduling system acknowledges the
unpredictable nature of cybersecurity work and the expectation that
DHS-CS employees occasionally work unusual hours and extended hours, as
needed, to execute the DHS cybersecurity mission, especially in
response to exigent circumstances and emergencies. The work scheduling
system also reflects an understanding of the cybersecurity talent
market, especially current work expectations and arrangements used by
other employers. Through the CTMS work scheduling system, DHS is able
to accurately administer DHS-CS employees' salaries, including based on
DHS-CS employees' hours worked, to ensure that DHS employees receive
sufficiently competitive compensation designed for their recruitment
and retention.
DHS will implement the work scheduling system in CTMS policy and
may establish other work scheduling requirements for DHS-CS employees,
including designated days, hours, core hours, or limits on the number
of work hours per day. The flexibility to establish other work
scheduling requirements allows DHS to adjust to and effectively manage
changes linked to the unpredictable nature of cybersecurity work, and
respond to work arrangements used by other cybersecurity employers.
6. DHS-CS Recordkeeping
Under the CTMS deployment program, DHS creates records of a DHS-CS
employee's employment in the DHS-CS. See Sec. 158.706. DHS documents
qualified positions and assignments, as well as other necessary
recordkeeping, and updates those documents and records as necessary.
DHS documents a qualified position by documenting an individual's
appointment to a qualified position. See Sec. 158.076. Documentation
of an individual's qualified position includes a description of the
individual's CTMS qualifications and DHS-CS cybersecurity work that can
be performed through application of those qualifications. Such
documentation also includes applicable work and career structures, such
as the individual's work level. Documentation of an individual's
qualified positions also includes the individual's salary, current
assignment, official worksite, and work schedule.
As discussed previously and stated in Sec. 158.522, a DHS-CS
employee serves in the same qualified position for the duration of
employment in the DHS-CS, regardless of any changes to the employee's
assignments, including primary DHS organizations or official worksite.
DHS updates the documentation associated with a DHS-CS employee's
qualified position to reflect changes affecting the employee's
qualified position, such as enhancements to CTMS qualifications, any
subsequent assignment, changes to applicable work and career
structures, and changes to official worksite or work schedule. Such a
change in documentation does not change the DHS-CS employee's qualified
position or indicate that DHS has appointed the employee to a different
qualified position.
Recordkeeping under CTMS also includes documenting assignments.
Documentation of an assignment includes specific assignment information
that describes the DHS-CS cybersecurity work activities of the
assignment. See Sec. 158.706. DHS also documents the timeframe of the
assignment, the DHS organization to which the DHS-CS employee is
assigned for the duration of the assignment, personnel security
requirements for the assignment, location of the assignment,
requirements and information related to work schedule, and information
related to the performance management program (e.g., information
relevant for appraisal reviews, mission impact reviews, and development
reviews such as goals and standards for evaluating performance). CTMS
assignment information is similar to information contained in a series
of artifacts commonly produced under Title 5, including a position
description, performance plan, and individual development plan.
Updates to the documentation associated with a DHS-CS employee's
qualified position also are not a promotion, transfer, or reassignment
for any other purpose under 5 U.S.C. or 5 CFR, except as necessary for
recordkeeping purposes only. See Sec. 158.706. CTMS does not contain
promotions, transfers, or reassignments as defined in Title 5 because
they are actions defined based on talent management concepts that are
inapplicable and not compatible with CTMS.\186\
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\186\ See e.g. 5 CFR 210.102(b)(11) (defining ``promotion''
generally under Title 5 to mean a change to a higher grade when both
the old and the new positions are under the GS or under the same
type graded wage schedule); 5 CFR 531.203 (defining ``promotion''
for purposes under the GS to mean a GS employee's movement from one
GS grade to a higher GS grade).
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While CTMS does not include certain Title 5 concepts, DHS may need
to use certain Title 5 terms for recordkeeping purposes to ensure
talent management actions for DHS-CS employees are administered and
documented properly. DHS uses existing Federal personnel recordkeeping
processes, standards, requirements, and systems of record, which use
Title 5 terms, for personnel records related to employees in the DHS-
CS. To accommodate the new approach to talent management under CTMS,
DHS may need to use those Federal personnel recordkeeping processes,
standards, requirements, and systems of record differently from how DHS
uses them to support other existing personnel systems. For example,
although a change in a DHS-CS assignment does not constitute a
reassignment for purposes of Title 5, DHS may process a change in
assignment for a DHS-CS employee as a ``reassignment'' and generate
associated records, even though existing Federal personnel
recordkeeping guidance defines ``reassignment'' as a change from one
position to another position.\187\ CTMS policy will address the
integration of CTMS talent management actions with existing Federal
personnel recordkeeping process, standards, requirements, and systems
of record. See Sec. 158.706
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\187\ U.S. Office of Personnel Management, Guide to Processing
Personnel Action (Mar. 2017), page 14-4.
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7. Details and Opportunities Outside of the DHS-CS
DHS may detail DHS-CS employees outside of DHS. See Sec. 158.707.
Detailing a DHS-CS employee outside of DHS under the CTMS deployment
system may result in enhanced qualifications of the employee upon
return to DHS. Additionally, detailing a DHS-CS employee may contribute
to executing the DHS cybersecurity mission. For example, DHS is
responsible for the security of the .gov domain and detailing a DHS-CS
employee to another agency to support that agency with its .gov
security would contribute to carrying out DHS's responsibilities.
DHS may approve a variety of details and external opportunities for
DHS-CS employees under existing provisions of Title 5 and other laws
governing details outside of DHS. See Sec. 158.707. When detailing a
DHS-CS employee under those other laws, DHS will abide by all terms and
conditions of those laws. As such, only DHS-CS employees in continuing
appointments may be assigned under the Intergovernmental Personnel Act
because such
[[Page 47885]]
appointments are analogous to the types of appointments eligible for
assignment under that Act.\188\ Given the unique CTMS work valuation
system and talent acquisition system, individuals in other Federal
personnel systems or from outside of the Federal government may not be
detailed to a qualified position in the DHS-CS. See Sec. 158.707.
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\188\ See 5 CFR part 334; U.S. Office of Personnel Management
website Policy, Data Oversight: Hiring Information, https://www.opm.gov/policy-data-oversight/hiring-information/intergovernment-personnel-act/#url=Provisions (last visited May 25,
2021).
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G. Developing Talent: Subpart H
Subpart H, Developing Talent, includes regulations addressing
performance management and development of DHS-CS employees and
establishes two elements of CTMS: The performance management program
and the career development program. DHS uses the CTMS performance
management program to: Establish and maintain individual accountability
among DHS-CS employees; manage, recognize, and develop performance of
DHS-CS employees; and improve effectiveness in executing the DHS
cybersecurity mission. See Sec. 158.802. DHS uses the CTMS career
development program to guide career progression of DHS-CS employees,
ensure development of the collective expertise of DHS-CS employees, and
ensure continued alignment between DHS-CS employee qualifications and
the set of CTMS qualifications. See Sec. 158.803. The authority in 6
U.S.C 658 does not impact existing laws regarding performance
management and career development, and DHS is establishing the CTMS
performance management program under 5 U.S.C. Chapter 43 and 5 CFR part
430. DHS is establishing the CTMS career development program under 5
U.S.C. Chapter 41 and 5 CFR 410 and 430.
DHS is establishing the CTMS performance management program and the
CTMS career development program in alignment with the DHS-CS's core
values and the goals of the CTMS compensation strategy. This alignment
reinforces the core values of expertise, innovation, and adaptability,
and underscores the expectation of continual learning for DHS-CS
employee performance and development. DHS-CS employees must ensure that
their CTMS qualifications remain fresh as technology and threats as
well as cybersecurity techniques and tactics change.
Alignment with the goals of the CTMS compensation strategy ensures
that DHS manages DHS-CS employee performance with a focus on those
goals of exceptional CTMS qualifications and mission impact, excellence
and innovation in the performance of DHS-CS cybersecurity work, and
continual learning. This focus aligns with opportunities for additional
compensation, such as CTMS recognition, which is based primarily on
mission impact, as discussed previously.
Alignment with the CTMS compensation strategy goal of continual
learning is particularly important for performance management and
career development. Such alignment reinforces that DHS-CS employees are
expected to enhance their CTMS qualifications, which ultimately
contributes to mission impact as DHS-CS employees apply those enhanced
qualifications to perform DHS-CS cybersecurity work. The goal of
continual learning also supports career progression, which is based on
enhancements to CTMS qualifications and salary progression as discussed
subsequently.
1. CTMS Performance Management Program
Performance management under 5 U.S.C. Chapter 43 and 5 CFR part 430
is the systematic process by which an agency involves its employees, as
individuals and members of a group, in improving organizational
effectiveness in the accomplishment of agency mission and goals.\189\
Under 5 CFR 430.102, improving organizational effectiveness in the
accomplishment of an agency's missions and goals should be integrated
with other agency processes including individual accountability,
recognition and development. To emphasize the linkage between
individual accountability, recognition, and development in improving
organizational effectiveness, the CTMS performance management program
implements the systematic process of performance management for DHS-CS
employees with three ongoing reviews: Appraisal reviews, development
reviews, and mission impact reviews. See Sec. Sec. 158.802, 158.804-
158.806.
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\189\ 5 CFR 430.102.
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Collectively, the three ongoing reviews are designed to foster and
encourage the improvement of organizational effectiveness in the
accomplishment of agency mission and goals through individual
accountability, contributions to the mission, and employee development,
all of which are fundamental to performance management under 5 CFR part
430. CTMS appraisal reviews target individual accountability. CTMS
development reviews focus on continual learning, and mission impact
reviews serve as a critical intersection point for the other two
reviews. As part of CTMS mission impact reviews, DHS analyzes and
describes a DHS-CS employee's influence on the execution of the DHS
cybersecurity mission through the application of the DHS-CS employee's
CTMS qualifications to perform DHS-CS cybersecurity work. In turn, DHS
uses the results of mission impact reviews to support decisions
relating to the type and amount of CTMS recognition a DHS-CS employee
may receive.
To complete the three reviews under the CTMS performance management
program, DHS may collect information and input on a periodic or ongoing
basis from the DHS-CS employee being reviewed, other DHS-CS employees,
the employee's supervisor, and other appropriate officials. See Sec.
158.802. Periodic or ongoing gathering of information and input from
such individuals ensures that DHS has sufficient information from
individuals familiar with a DHS-CS employee's CTMS qualifications and
performance of DHS-CS work through one or more assignments. Such
information and input enable DHS to make informed determinations and
take appropriate talent management actions related to all three types
of reviews under the CTMS performance management program.
DHS conducts CTMS appraisal reviews using a performance appraisal
program, established specifically for DHS-CS employees, that fulfills
the specific requirements for appraisal reviews under 5 CFR 430. DHS
uses the CTMS appraisal program to review and evaluate the performance
of DHS-CS employees, and to ensure DHS-CS employees' individual
accountability. See Sec. 158.804. The appraisal program for DHS-CS
employees includes one or more progress reviews, as defined in 5 CFR
430.203, and an appraisal that results in a rating of record, as
defined in 5 CFR 430.203. DHS addresses unacceptable performance, as
defined in 5 U.S.C. 4301(3), under the provisions of 5 CFR part 432 or
part 752.
As mentioned previously, a DHS-CS employee is ineligible to receive
CTMS recognition if DHS determines a DHS-CS employee's performance is
unacceptable or the employee receives an unacceptable rating of record.
See Sec. Sec. 158.630 and 158.804. For the same reasons, a DHS-CS
employee may also be excluded from mission impact reviews. See 158.804.
Mission impact reviews serve as a basis for decisions about CTMS
recognition, and a DHS-CS
[[Page 47886]]
employee should not be recognized if the employee's performance is
unacceptable.
CTMS mission impact reviews are used to evaluate a DHS-CS
employee's mission impact throughout the employee's service in a
qualified position and to generate a mission impact summary at least
annually. See Sec. 158.805. Mission impact reviews capture DHS-CS
employee mission impact on an ongoing basis. Application of a DHS-CS
employee's CTMS qualifications to successfully and proficiently perform
DHS-CS cybersecurity work results in mission impact attributable to
that employee. In reviewing a DHS-CS employee's mission impact,
individually or as part of a group or both, DHS considers a variety of
factors such as: Superior application of qualifications to perform DHS-
CS cybersecurity work; significant enhancements to qualifications;
special contributions to cybersecurity technologies, techniques,
tactics, or procedures; and notable improvements to execution of the
DHS cybersecurity mission.
Mission impact reviews are closely connected to CTMS compensation.
Capturing, encouraging, and recognizing DHS-CS employee mission impact
is part of how DHS manages the DHS-CS based on the DHS-CS's core values
and in alignment with the goals of the compensation strategy as
previously discussed. As a result of mission impact reviews, DHS makes
distinctions among DHS-CS employees to support decisions related to
CTMS recognition.
CTMS development reviews are used to review a DHS-CS employee's
career progression throughout the employee's service in the DHS-CS. See
Sec. 158.806. As described under Sec. 158.803, career progression in
the DHS-CS is based on enhancement of CTMS qualifications and salary
progression resulting from recognition. DHS uses development reviews to
generate a development summary at least annually for each DHS-CS
employee, and development summaries may include plans for the learning
and career progression of a DHS-CS employee or group of DHS-CS
employees. DHS may conduct development reviews concurrently with
mission impact reviews.
As part of development reviews, DHS may compare, categorize, and
rank DHS-CS employees to support decisions related to professional
development and training, as well as subsequent assignments. See Sec.
158.806. Information from development reviews can help DHS determine
which types of trainings would benefit DHS-CS employees the most. Such
information is also useful in tailoring professional development
offerings for DHS-CS employees. DHS may also use information from
development reviews in matching DHS-CS employees to subsequent
assignments. Certain subsequent assignments may assist DHS-CS employees
in maintaining and enhancing their CTMS qualifications, including
through exposure to specific types of cybersecurity work. As mentioned
previously, under the deployment program, DHS communicates with DHS-CS
employees about such subsequent assignment opportunities.
Development reviews connect the CTMS performance management program
and the CTMS career development program. Development reviews are the
primary means by which DHS determines the extent to which DHS-CS
employees have enhanced their CTMS qualifications and thus assist DHS
in guiding career progression for DHS-CS employees under the career
development program.
2. CTMS Career Development Program
DHS is establishing and administering the CTMS career development
program to guide DHS-CS employee career progression, ensure development
of the collective expertise of DHS-CS employees through continual
learning, and ensure the continued alignment between the qualifications
of DHS-CS employees and the set of CTMS qualifications. See Sec.
158.803. The career development program is closely linked to the CTMS
performance management program and DHS will use development reviews
from the performance management program as part of the career
development program.
Career progression in the DHS-CS is based on enhancement of CTMS
qualifications and salary progression resulting from recognition
adjustments. See Sec. 158.803. Enhancement of CTMS qualifications is
one component of career progression in the DHS-CS. DHS needs the
collective expertise of the DHS-CS to keep pace with the continual
evolution of cybersecurity work. Salary progression is another
component of career progression in the DHS-CS. As DHS-CS employees
progress through their careers, DHS recognizes DHS-CS employees'
advances through recognition adjustments. As mentioned previously, CTMS
is not a longevity-based personnel system, and career progression in
the DHS-CS is not based on length of service in the DHS-CS or the
Federal government.
Under the CTMS career development program, DHS guides career
progression of DHS-CS employees using development strategies based on
information from development reviews, mission-related requirements, and
strategic talent priorities. See Sec. 158.803. DHS aims to guide the
career progression of DHS-CS employees to ensure that DHS-CS employees
are prepared to execute the DHS cybersecurity mission, including into
the future.
Reviewing and encouraging DHS-CS employee career progression is
part of how DHS manages the DHS-CS based on the DHS-CS's core values
and in alignment with the goals of the compensation strategy as
previously discussed. Reviewing and encouraging excellence, innovation,
and continual learning through professional development and training
opportunities and certain subsequent assignments ensures DHS-CS
employees are recognized for such progression. DHS needs the collective
expertise of the DHS-CS to keep pace with the ever-evolving nature of
cybersecurity work, cybersecurity risks, and cybersecurity threats, and
development reviews help foster and encourage a DHS-CS with similarly
evolving expertise.
The career development program emphasizes continual learning. DHS
needs the collective expertise of the DHS-CS to keep pace with the
evolution of cybersecurity work and the dynamic DHS cybersecurity
mission. DHS also needs to ensure the DHS-CS collective expertise
reflects the set of CTMS qualifications. The career development
program, and its emphasis on continual learning, assists DHS in
accomplishing this.
DHS establishes, maintains, and communicates criteria for continual
learning for DHS-CS employees. Such criteria include recommended and
required learning activities, such as: Completion of a specific course
of study; completion of mission-related training defined in 5 CFR
410.101; performance of certain cybersecurity work as part of DHS-CS
assignments; and participation in opportunities for CTMS professional
development and training. See Sec. 158.803. DHS aims to utilize all
available opportunities for DHS-CS employee development, including
opportunities under CTMS and under Title 5. Such opportunities may
include subsequent assignments, details outside of DHS, and training
and professional development under Title 5, such as academic degree
training under 5 U.S.C. 4107.
DHS verifies a DHS-CS employee's enhancement of CTMS
qualifications, which may include review by the CTMB or assessment
using standardized
[[Page 47887]]
instruments and procedures designed to measure the extent to which a
DHS-CS employee has enhanced the employee's qualifications. DHS-CS
employees may also participate in a formal assessment process for DHS
to verify enhancement of CTMS qualifications.
H. Federal Employee Rights and Requirements & Advisory Appointments:
Subparts I & J
Subpart I contain regulations addressing Federal civil service
employee rights and requirements that apply under CTMS and in the DHS-
CS. Subpart J addresses CTMS political appointments, known as advisory
appointments. These subparts clarify application to DHS-CS employees of
certain protections and requirements for Federal employees and describe
employment in the DHS-CS for DHS-CS advisory appointees.
1. Subpart I--Employee Rights, Requirements, and Input
Subpart I, Employee Rights, Requirements, and Input, contains
regulations establishing a program for addressing DHS-CS employee input
specific to the DHS-CS and a DHS-CS employee's employment. Subpart I
also clarifies that certain requirements and protections for Federal
employees apply for DHS-CS employees.
DHS-CS employees retain rights and access to processes that may be
relevant to employment in the DHS-CS. The provisions of 5 U.S.C.
Chapter 75 and 5 U.S.C. 4303 regarding adverse actions and 5 U.S.C.
Chapter 35, Subchapter I regarding reductions in force apply to talent
management actions under CTMS. See Sec. 158.901. Also, DHS-CS
employees retain rights, as provided by law, to seek review of
employment-related actions before third parties, such as the Equal
Employment Opportunity Commission, Merit Systems Protection Board,
Office of Special Counsel and Department of Labor. See Sec. 158.901.
Additionally, back pay remains available under 5 U.S.C. 5596 for
unjustified or unwarranted talent management actions, and such actions
have the same meaning as personnel actions in 5 U.S.C. 2302(a)(2). See
Sec. 158.901.
Like other Federal officers and employees, DHS-CS employees are
employees covered by the Ethics in Government Act section 101(f)(3),
and are subject to the criminal conflict of interest rules as well as
government ethics requirements. See Sec. 158.902. These include:
criminal conflict of interest provisions in 18 U.S.C. 201-209; Ethics
in Government Act, as amended, and implementing regulations in 5 CFR,
Chapter XVI, Subchapter B; Supplemental Standards of Conduct for
Employees of the Department of Homeland Security in 5 CFR part 4601;
and DHS policy. See Sec. 158.902. Under these ethics requirements,
DHS-CS employees must seek approval for certain outside activities,
comply with ethics program requirements, and other applicable laws,
including post-government employment restrictions. See Sec. 158.902.
In addition to the rights and access to processes outside of CTMS,
DHS-CS employees also have access to an employee input program under
CTMS. DHS is establishing a program for DHS-CS employees to express
employment-related concerns and recommendations for enhancing CTMS
administration and DHS-CS management. See Sec. 158.903. The CTMS
employee input program provides a process for DHS-CS employees to
request review of certain talent management actions. DHS will implement
this program in CTMS policy, and that policy will address the talent
management actions covered by the program and the process for
expressing input.
One purpose of the employee input program is to establish
opportunities for DHS-CS employees to raise, and have addressed,
employment-related concerns without formal litigation. The program,
however, does not replace opportunities for redress with relevant third
parties, mentioned previously. CTMS policy implementing the employee
input program will describe how the program interacts with these other
third-party redress avenues.
Another purpose of the employee input program is to provide a
process for DHS-CS employees to provide feedback on CTMS and the DHS-
CS. This feedback will help the CTMB evaluate whether the CTMS is
fulfilling the purpose of its design to recruit and retain individuals
with the qualifications necessary to execute the DHS cybersecurity
mission. As discussed previously, CTMS has several interrelated
elements that function together. Feedback from DHS-CS employees is
critical, and the employee input program provides an opportunity for
DHS-CS employees to be heard and share their thoughts about the
operation of CTMS, including hiring, compensation, and development
practices that could be improved. The CTMB may use information from the
employee input program for its periodic review of CTMS administration
and operation.
2. Subpart J--Advisory Appointments
Subpart J, Advisory Appointments, addresses political appointees
under CTMS who serve in advisory appointments. An advisory appointment
is an appointment to a qualified position that: The Secretary
determines is of a policy-determining, policy-making, or policy
advocating character or involves a close or confidential working
relationship with the Secretary or other key appointed officials; does
not have a salary set by statute; and is not required to be filled by
an appointment by the President. See Sec. 158.1001. DHS-CS advisory
appointees are treated similar to other political appointees except
regarding appointment and compensation. See Sec. Sec. 158.1001-
158.1003. DHS-CS advisory appointees are appointed to a qualified
position through an advisory appointment, instead of a Schedule C
position or non-career SES position. Compensation for DHS-CS advisory
appointees are set under the CTMS compensation system, instead of under
the GS, the SES, or other Federal pay system.
An advisory appointment may not be used for an appointment for
which salary is set by statute; DHS sets salaries for all advisory
appointees under the CTMS compensation system. DHS leadership positions
that are established in statute and have a salary in the Executive
Schedule set by statute are not covered by advisory appointments. DHS
positions required to be filled by appointment by the President also
are not covered by advisory appointments.
To treat advisory appointees like other political appointees for
talent management purposes other than appointment and compensation, an
advisory appointment is treated as an appointment to a Schedule C
position under 5 CFR 213.3301. See Sec. 158.1001. The provisions of
OPM regulations governing talent management for Schedule C positions
apply to advisory appointments, except appointment and compensation is
governed by subpart J. DHS also tracks and coordinates advisory
appointments with the Executive Office of the President and OPM, as is
done with other political appointments. Employment restrictions that
apply to other political appointees also apply to advisory appointees
as if the advisory appointee was in a Schedule C position. For example,
Executive Order 13989 requiring an ethics pledge from political
appointees will apply to advisory appointees.
Appointment to an advisory appointment includes the individual
participating in the CTMS assessment
[[Page 47888]]
program. See Sec. 158.1002. As discussed previously in this document,
DHS determines individuals' qualifications under the CTMS assessment
program, and CTMS qualifications are organized into broad categories
defined primarily in terms of capabilities, such as general
professional capabilities, cybersecurity technical capabilities, and
leadership capabilities. DHS anticipates that the assessment processes
for advisory appointments address all such categories, with a focus on
both the technical and policy advisory roles of advisory appointees.
The Secretary or designee must approve the appointment of an
individual to an advisory appointment by name, and all advisory
appointees serve at the will of the Secretary. See Sec. 158.1002. Like
other political appointments, an advisory appointment terminates no
later than the end of the term of the U.S. President under which the
advisory appointee was appointed, and a DHS-CS advisory appointee may
be removed at any time. The provisions of 5 U.S.C. Chapter 75 regarding
adverse actions do not apply to talent management actions taken under
this part for a DHS-CS advisory appointee because of the confidential,
policy-determining, policy-making, or policy-advocating character of an
advisory appointment.
Advisory appointments to qualified positions are limited and capped
at a total number established by the Secretary or the Secretary's
designee under Sec. 158.1002. This cap reflects that noncareer
appointments to SES positions are generally limited to 25 percent of
the agency's number of total SES positions, and Schedule C positions
are limited in total number under OPM direction.\190\ Like Schedule C
positions under 5 CFR 213.3301, DHS may not use an advisory appointment
solely or primarily for the purpose of detailing any individual to the
White House. See Sec. 158.1002.
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\190\ Committee on Homeland Security and Government Affairs,
U.S. Senate (114th Congress, 2d Session), Policy and Supporting
Positions (Dec. 1, 2016), Appendices 2 and 4, available at https://www.govinfo.gov/content/pkg/GPO-PLUMBOOK-2016/pdf/GPO-PLUMBOOK-2016.pdf (last visited May 25, 2021).
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Once appointed, an advisory appointee in the DHS-CS is treated like
other political appointees for all talent management purposes, except
compensation. Like other DHS-CS employees, an advisory appointee
receives a salary under the CTMS salary system, unless the appointee is
providing uncompensated service. See Sec. 158.1003. An advisory
appointee may receive a salary in the standard range only because, as
discussed previously, DHS uses the extended range for limited
circumstances only. Like other political appointees, compensation for
an advisory appointee is subject to guidance from the Administration on
compensation for political appointees.
Like political appointees in Schedule C positions who may receive a
promotion and GS grade increase, and political appointees in non-career
SES positions who may receive a performance-based pay adjustment, an
advisory appointee may receive salary adjustments in the form of
recognition adjustments. Like a political appointee in a Schedule C
position who may receive locality pay under the GS, an advisory
appointee may receive a local cybersecurity talent market supplement.
Like other DHS-CS employees, DHS administers salary and other
compensation, including leave, for an advisory appointee based on
consideration of the advisory appointee's work schedule under the CTMS
work scheduling system. DHS also may convert an advisory appointee's
salary into an hourly, biweekly, or other rate as necessary to ensure
accurate operation of existing pay administration procedures and
infrastructure, as mentioned previously.
An advisory appointee, unless providing uncompensated service, may
also receive CTMS additional compensation, but only as provided in
subpart J. Like other DHS-CS employees, additional compensation for
advisory appointees is subject to and may be limited by the CTMS
aggregate compensation cap. Additional compensation for advisory
appointees is also subject to and may be limited by prohibitions,
guidance, and other provision of law governing awards to political
appointees, including 5 U.S.C. 4508 prohibiting awards to political
appointees during a Presidential election period, and other
restrictions and requirements in CTMS policy. Restrictions on
additional compensation for advisory appointees aligns with general
restrictions on certain types of compensation for political appointees
across the Federal government, such as OPM guidance to agencies
restricting discretionary awards, bonuses, and similar payments for
Federal employees serving under political appointments.\191\
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\191\ See e.g., U.S. Office of Personnel Management, CPM 2010-
14, ``Guidance on Freeze on Discretionary Awards, Bonuses, and
Similar Payment for Federal Employees Serving under Political
Appointments'' (Aug. 2010), available at https://chcoc.gov/content/guidance-freeze-discretionary-awards-bonuses-and-similar-payments-federal-employees-serving (last visited May 25, 2021); U.S. Office
of Personnel Management, C-19-24, ``Guidance on Awards for Employees
and Agency Workforce Fund Plan'' (July 2019) available at https://chcoc.gov/content/guidance-awards-employees-and-agency-workforce-fund-plan (last visited May 25, 2021).
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Like other types of political appointees who may receive monetary
and other awards, advisory appointees may receive CTMS recognition
payments, CTMS recognition time-off, and CTMS honorary recognition,
subject to prohibitions, guidance, and other provision of law governing
compensation for political appointees. An individual being appointed to
an advisory appointment, however, may not receive any recognition as
part of an offer of employment because other political appointees are
prohibited from receiving recruitment incentives.\192\
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\192\ See 5 CFR 575.104.
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An advisory appointee may receive CTMS professional development and
training; however, unlike other DHS-CS employees, an advisory appointee
may not receive any payment or reimbursement for costs of academic
degree training or expenses to obtain professional credentials,
including examinations to obtain such credentials. As discussed
previously, CTMS professional development and training is based, in
part, on payment of expenses to obtain professional credentials under 5
U.S.C. 5757, which prohibits such payments for any employee occupying
or seeking to qualify for appointment to any position that is excepted
from the competitive service because of the confidential, policy-
determining, policy-making, or policy-advocating character of the
position. Similarly, an advisory appointee is ineligible for CTMS
student loan repayments, which as discussed previously are based on
student loan repayment provisions of Title 5, and political appointees
are ineligible to receive Title 5 student loan repayments.\193\
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\193\ See 5 CFR 537.104(b).
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Like other political appointees in non-career SES positions and
Schedule C positions, advisory appointees may receive types of
compensation, including leave and benefits, authorized under CTMS and
provided in accordance with provisions of Title 5. An advisory
appointee, however, may not receive a CTMS special working conditions
payment under a special working conditions payment program because of
the nature of an advisory appointment: A political appointment,
especially one with a close and confidential working relationship with
the Secretary or other key appointed officials, involves different
expectations about working conditions than the
[[Page 47889]]
appointment of other DHS-CS employees.
An advisory appointee may receive CTMS allowances in nonforeign
areas under 5 U.S.C. 5941 like other DHS-CS employees because under 6
U.S.C. 658(b)(3)(B) mandates that all employees in qualified positions
``shall be eligible'' for such allowances on the same basis and to the
same extent as if the employee in the qualified positions was covered
by 5 U.S.C. 5941. A CTMS allowance in nonforeign areas for an advisory
appointee, however, is subject to prohibitions, guidance, and other
provision of law governing compensation for political appointees.
V. Appendix: Reference Materials
The following are the most relevant reference materials reviewed by
a specialized DHS team as part of designing CTMS to solve DHS's
historical and ongoing challenges recruiting and retaining
cybersecurity talent:
William Crumpler & James A. Lewis, The Cybersecurity
Workforce Gap, Center for Strategic & International Studies, (Jan.
2019) available at https://www.csis.org/analysis/cybersecurity-workforce-gap (last visited May 25, 2021).
Peter F. Drucker, Knowledge Worker Productivity: The
Biggest Challenge, 41 California Management Review 79 (Winter 1999).
Robert L. Heneman, Ph.D., Work Evaluation: Strategic Issues
and Alternative Methods, prepared for the U.S. Office of Personnel
Management, FR-00-20 (July 2000, Revised Feb. 2002).
Homeland Security Advisory Council, U.S. Department of
Homeland Security, CyberSkills Task Force Report (Fall 2012).
Joseph W. Howe, History of the General Schedule
Classification System, prepared for the U.S. Office of Personnel
Management, FR-02-25 (Mar. 2002).
(ISC)\2\,
[cir] Hiring and Retaining Top Cybersecurity Talent: What Employers
Need to Know About Cybersecurity Jobseekers (2018), available at
https://www.isc2.org/Research/Hiring-Top-Cybersecurity-Talent (last
visited May 25, 2021).
[cir] Strategies for Building and Growing Strong Cybersecurity
Teams, (ISC)\2\ Cybersecurity Workforce Study (2019), available at
https://www.isc2.org/Research/2019-Cybersecurity-Workforce-Study
(last visited May 25, 2021).
Martin C. Libicki et al, H4CKER5 WANTED: An
Examination of the Cybersecurity Labor Market, National Security
Research Division, RAND Corporation (2014) available at https://www.rand.org/content/dam/rand/pubs/research_reports/RR400/RR430/RAND_RR430.pdf (last visited May 25, 2021).
Bernard Marr, The Future of Work: 5 Important Ways Jobs
Will Change the 4th Industrial Revolution, Forbes, July 15, 2019,
available at https://www.forbes.com/sites/bernardmarr/2019/07/15/the-future-of-work-5-important-ways-jobs-will-change-in-the-4th-industrial-revolution/#3ffd62b754c7 (last visited May 25, 2021).
Susan Milligan, HR 2025: 7 Critical Strategies to Prepare
for the Future of HR, HR Magazine, Oct. 29, 2018 available at
https://www.shrm.org/hr-today/news/hr-magazine/1118/Pages/7-critical-strategies-to-prepare-for-the-future-of-hr.aspx (last
visited May 25, 2021).
National Academy of Public Administration,
[cir] Revitalizing Federal Management: Managers and Their
Overburdened Systems (Nov. 1983).
[cir] Modernizing Federal Classification: An Opportunity for
Excellence (July 1991).
[cir] The Transforming Power of Information Technology: Making the
Federal Government an Employer of Choice for IT Employees, Summary
Report (Aug. 2001).
[cir] Recommending Performance-Based Federal Pay. A Report by the
Human Resources Management Panel (May 2004).
[cir] Transforming the Public Service: Progress Made and the Work
Ahead (Dec. 2004).
[cir] Building a 21st Century Senior Executive Service (Mar. 2017).
[cir] No Time to Wait: Building a Public Service for the 21st
Century (July 2017).
[cir] No Time to Wait, Part 2: Building a Public Service for the
21st Century (Sep. 2018).
National Commission on Military, National, and Public
Service, Inspired to Serve, (Mar. 2020).
National Research Council, Professionalizing the Nation's
Cybersecurity Workforce?: Criteria for Decision-Making, The National
Academies Press (2013) available at https://doi.org/10.17226/18446
(last visited May 25, 2021).
Partnership for Public Service,
[cir] Cyber In-Security: Strengthening the Federal Cybersecurity
Workforce (July 2009).
[cir] Cyber In-Security II: Closing the Federal Talent Gap (Apr.
2015).
Emil Sayegh, As the End of 2020 Approaches, The
Cybersecurity Talent Drought Gets Worse, Forbes, Sep. 22, 2020,
available at https://www.forbes.com/sites/emilsayegh/2020/09/22/as-the-end-of-2020-approaches-the-cybersecurity-talent-drought-gets-worse/?sh=104825545f86 (last visited May 25, 2021).
Society for Human Resource Management, The New Talent
Landscape: Recruiting Difficulty and Skills Shortages (June 2016),
available at https://www.shrm.org/hr-today/trends-and-forecasting/research-and-surveys/Pages/Talent-Landscape.aspx (last visited May
25, 2021).
Harry J. Thie et al, Future Career Management Systems for
U.S. Military Officers, Santa Monica, CA: RAND Corporation, MR-470-
OSD, prepared for the Office of the Secretary of Defense (1994)
available at https://www.rand.org/pubs/monograph_reports/MR470.html
(last visited May 25, 2021).
U.S. Cyberspace Solarium Commission,
[cir] U.S. Cyberspace Solarium Commission Report (Mar. 2020).
[cir] Growing a Stronger Federal Cyber Workforce, CSC White Paper #3
(Sep. 2020).
U.S. Department of Homeland Security, DHS Cybersecurity
Workforce Strategy: Fiscal Years 2019-2023.
U.S. Government Accountability Office,
[cir] Description of Selected Systems for Classifying Federal
Civilian Positions and Personnel, GGD-84-90 (July 1984).
[cir] Human Capital: Opportunities to Improve Executive Agencies'
Hiring Process, GAO-03-450 (May 2003).
[cir] Human Capital: Implementing Pay for Performance at Selected
Personnel Demonstration Projects, GAO-04-83, (Jan. 2004).
[cir] Human Capital: Federal Workforce Challenges in the 21st
Century, GAO-07-556T (Mar. 2007).
[cir] Human Capital: OPM Needs to Improve the Design, Management,
and Oversight of the Federal Classification System, GAO-14-677 (July
2014).
[cir] Federal Workforce: Sustained Attention to Human Capital
Leading Practices Can Help Improve Agency Performance, GAO-17-627T,
(May 2017).
[cir] Federal Workforce: Key Talent Management Strategies for
Agencies to Better Meet Their Missions, GAO-19-181 (Mar. 2019).
[cir] Priority Open Recommendations: Office of Personnel Management,
GAO-19-322SP (April 2019).
[cir] Federal Workforce: Talent Management Strategies to Help
Agencies Better Compete in a Tight Labor Market, GAO-19-723T (Sep.
2019).
U.S. Office of Personnel Management,
[cir] A Fresh Start for Federal Pay: The Case for Modernization,
(April 2002).
[cir] Alternative Personnel Systems in the Federal Government: A
Status Report on Demonstration Projects and Other Performance-Based
Pay Systems, (Dec. 2007).
[cir] Introduction to the Position Classification Standards (2009).
U.S. Merit Systems Protection Board,
[cir] Attracting the Next Generation: A Look at Federal Entry-Level
New Hires (Jan. 2008).
[cir] In Search of Highly Skilled Workers: A Study on the Hiring of
Upper Level Employees From Outside the Federal Government (Feb.
2008).
[cir] Job Simulations: Trying Out for a Federal Job (Sep. 2009).
Sheldon Whitehouse et al, From Awareness to Action: A
Cybersecurity Agenda for the 45th President, Report of the CSIS
Cyber Policy Task Force, Center for Strategic & International
Studies (Jan. 2017), available at https://www.csis.org/analysis/awareness-action (last visited May 25, 2021).
[[Page 47890]]
VI. Public Participation and Request for Comments
Interested persons are invited to participate in this rulemaking by
submitting written comments on this interim final rule. Comments that
will provide the most assistance to DHS will reference a specific
portion of the interim final rule, explain the reason for any
suggestion or recommended change, and include data, information, or
authority that supports such suggestion or recommended change. DHS will
review all comments received on this interim final rule, but may choose
not to post off-topic, inappropriate, or duplicative comments. To
submit a comment:
Go to http://www.regulations.gov and follow the instructions
for submitting comments for docket number DHS-2020-0042. If your
material cannot be submitted using http://www.regulations.gov, contact
the persons listed in the For Further Information Contact section of
this document for alternative instructions.
All submissions received must include the agency name and
docket number for this rulemaking.
Comments posted to http://www.regulations.gov are posted
without change and will include any personal information provided. For
more information about privacy and submissions in response to this
document, see DHS's eRulemaking System of Records notice (85 FR 14226,
March 11, 2020).
VII. Statutory and Regulatory Requirements
DHS developed this rule after considering numerous statutes and
Executive Orders (E.O.s) related to rulemaking. Below is a summary of
the analysis based on these statutes or E.O.s.
A. Executive Orders 12866 (Regulatory Planning and Review) and 13563
(Improving Regulation and Regulatory Review)
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
the costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This rule is one of agency management and personnel. While
such rules are not considered rules subject to review by OMB under E.O.
12866,\194\ OMB has reviewed it consistent with the principles of that
Order. This rule does not impose costs or burdens on the private
sector. The additional government expense to operate and maintain CTMS
in the future is projected to be $12 to $17 million, annually.
---------------------------------------------------------------------------
\194\ E.O. 12866, sec. 3(d) (excluding from the definition of
``regulation'' or ``rule'' subject to the E.O. requirements,
``regulations or rules that are limited to agency organization,
management, or personnel matters'').
---------------------------------------------------------------------------
An assessment of potential costs and benefits follows.
1. Background and Purpose
CTMS is a new mission-driven, person-focused, and market-sensitive
approach to talent management featuring several interrelated elements.
Each of the CTMS elements (strategic talent planning process, talent
acquisition system, compensation system, deployment program,
performance management program, and career development program)
represent a shift from the talent management methods and practices
Federal agencies traditionally use to manage Federal civil service
talent. CTMS is designed to recruit and retain individuals with the
skills, called qualifications, necessary to execute the DHS
cybersecurity mission. CTMS is also designed to adapt to changes in
cybersecurity work, the cybersecurity talent market, and the DHS
cybersecurity mission over time. With CTMS, DHS is creating a new type
of Federal civilian position, called a qualified position, and the
cadre of those positions and the individuals appointed to them is
called the DHS-CS. DHS organizations will use CTMS when they need to
recruit and retain talent with CTMS qualifications and DHS determines
the recruitment and retention of such talent would be enhanced by
specialized CTMS practices for hiring, compensation, and development.
The DHS organizations using CTMS will provide for the compensation
of new DHS-CS employees they hire, and OCHCO, which contains the
specialized team responsible for designing CTMS, will assist those DHS
organizations as they hire, compensate, and develop those new DHS-CS
employees. The Cybersecurity and Infrastructure Security Agency (CISA)
and the DHS Office of the Chief Information Officer (DHS OCIO) will be
the first to use CTMS and hire new DHS-CS employees. In early FY 2022,
CISA and DHS OCIO plan to use CTMS for approximately 150 priority
hires.
2. CTMS Costs: Designing, Establishing, and Administering CTMS
To design CTMS and prepare for its establishment and
administration, OCHCO needed the talent management infrastructure
necessary to conceive of and plan for DHS to use a new approach to
Federal civilian talent management. Most importantly, OCHCO needed
individuals with a variety of highly specialized talent management
expertise in areas ranging from industrial and organizational (I/O)
psychology and compensation design to Federal talent management policy
and employment law. Such expertise was necessary to design each of the
interrelated elements of CTMS as well as prepare for their respective
administration. All CTMS elements, especially those reflecting the
greatest shifts from existing Federal talent management methods and
practices, required effort to envision, including a variety of research
and planning activities to translate ideas into specialized hiring,
compensation, and development practices DHS could begin to use. This
preparation required DHS to review existing talent management business
processes in use across DHS organizations and formulate adjustments to
ensure the effective administration of CTMS and its elements. Notable
adjustments involved reviewing approval and recordkeeping procedures
for talent management actions as well as operation of existing
information technology support systems, such as the DHS personnel and
payroll system.
In fiscal year (FY) 2016, Congress began providing OCHCO with
funding to design and establish CTMS. The table below summarizes the
funding Congress provided OCHCO for CTMS from FY 2016 through FY 2021;
it also outlines how OCHCO used the funding to design and prepare to
administer each CTMS element.
[[Page 47891]]
Table 3--Funding OCHCO Received for CTMS From FY 2016-FY 2021
[$ millions]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Strategic talent planning process
---------------------------------------- Talent Performance Career
Identification Talent Work acquisition Compensation Deployment management development Total % Total
of work and market valuation system system program program program by FY by FY
qualifications analysis system
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
FY 2016........................................................ 0.85 0.16 0.26 0.37 0.3 0.2 0.23 0.2 2.57 5
FY 2017........................................................ 0.99 0.2 0.31 0.47 0.36 0.26 0.37 0.37 3.34 7
FY 2018........................................................ 1.58 0.76 0.91 6.21 0.9 0.68 0.91 0.55 12.5 25
FY 2019........................................................ 0.99 0.43 0.87 1.37 0.79 0.53 0.62 0.46 6.07 12
FY 2020........................................................ 0.98 0.31 0.55 5.5 0.76 1.41 1.25 0.81 11.58 23
FY 2021........................................................ 0.91 0.72 0.41 4.59 1.97 1.86 1.91 1.13 13.49 27
--------------------------------------------------------------------------------------------------------------------------------
Total by Element........................................... 6.31 2.59 3.31 18.51 5.08 4.94 5.29 3.52 49.55 100
--------------------------------------------------------------------------------------------------------------------------------
% Total by Element......................................... 13 5 7 37 10 10 11 7 100 .......
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
As shown in Table 3, OCHCO used approximately 37 percent of the
funding received from FY 2016 through FY 2021 for the talent
acquisition system, which required extensive industrial and
organizational (I/O) psychology research to develop, validate, and test
assessment processes, including simulations of DHS-CS cybersecurity
work intended to test CTMS qualifications. OCHCO also used a total of
approximately 25 percent of the FY 2016 through FY 2021 funding on
parts of the strategic talent planning process, each of which are
critical to the administration of several CTMS elements. Each of the
remaining elements was associated with less than 11 percent of the
funding received from FY 2016 through FY 2021.
For FY 2022, DHS has requested a budget increase of approximately
$2.3 million above FY 2021 funding to cover expected enhancements to
the talent acquisition and compensation systems. Additional spending,
to be split evenly between these two elements, is intended to ensure
that DHS can effectively use CTMS to source and assess more applicants,
hire more DHS-CS employees, and monitor and adjust the compensation of
those employees. Currently, DHS is planning with DHS organizations for
a second phase of hiring to begin in FY 2022 and to include at least
350 new DHS-CS employees.
Notably, OCHCO used 74 percent and 26 percent of the FY 2016
through FY 2021 funding on contract support and OCHCO Federal team
salaries and benefits, respectively. Much of the design of CTMS and its
elements required temporary, start-up expertise, which was most
efficiently secured via contract. In FY 2022, DHS anticipates initial
start-up investments required to establish CTMS will be complete. DHS
anticipates annual costs of operating CTMS in future years to range
from approximately $12 million to $17 million, depending on the number
of DHS organizations using CTMS, the growth of the population of DHS-CS
employees, and the magnitude of adjustments to CTMS required as a
result of changes in the cybersecurity talent market and the DHS
cybersecurity mission. Simultaneously, DHS expects a larger proportion
of annual CTMS administration costs to be dedicated to the salaries and
benefits of Federal employees responsible for administering CTMS and
supporting both DHS organizations using CTMS and the DHS-CS employees
hired by them.
3. CTMS & DHS-CS Costs: Compensating and Retaining DHS-CS Employees
The costs of compensating DHS-CS employees with salaries and
additional compensation are not accounted for in the funding OCHCO has
received for CTMS. DHS organizations will cover the costs of
compensating DHS-CS employees and any related expenses incurred after
the selection of those employees. Costs for compensating DHS-CS
employees will be constrained by the amount budgeted for DHS's
compensation expenditures, as is the case for existing Federal civilian
employees in positions established and managed under other existing
Federal personnel systems.
OCHCO will work closely with DHS organizations to establish
qualified positions in the DHS-CS and support the hiring, compensation,
and development their DHS-CS employees. In addition, DHS organizations
will commit to funding new qualified positions and DHS-CS employees
prior to hiring. Such funding commitments will be based on hiring
plans, including cost estimates, established by DHS organizations with
assistance from OCHCO. In planning for the cost of qualified positions
and DHS-CS employees, DHS will use a consistent cost estimating
methodology, much like DHS uses to describe and estimate employee costs
under other existing Federal personnel systems. In alignment with the
new CTMS compensation system, the new cost estimating methodology will
account for four new cost factors: Salary, salary adjustments (called
recognition adjustments), cash bonuses (called recognition payments),
and training.
Under CTMS, DHS sets salaries based on assessment of an
individual's CTMS qualifications. Salaries for DHS-CS employees may
include a local cybersecurity talent market supplement, intended to
account for differences in the cost of talent in specific local
cybersecurity talent markets, which are geographic areas defined by
DHS. Salary adjustments under CTMS are based primarily on a DHS-CS
employee's mission impact, and DHS makes such adjustments based on an
understanding of current compensation practices in the broader
cybersecurity talent market, including the salary rates of other
employers.
CTMS additional compensation includes recognition payments based
primarily on DHS-CS employees' mission impact, and DHS also provides
such payments based on an understanding of current compensation
practices in the broader cybersecurity talent market. Under CTMS,
continuous learning is a critical aspect of DHS-CS employees' career
progression, so the new cost estimating methodology includes training
costs to ensure DHS organizations have requisite funding allocated to
invest in the development of their DHS-CS employees. Remaining position
costs, such as benefits, General Services Administration rent, and
equipment, have been incorporated into the cost estimating methodology
based on established rates DHS uses to estimate employee costs under
other existing Federal personnel systems.
[[Page 47892]]
This rulemaking may have future distributional effects on the DHS
budget regarding funding for positions and employees. At the launch of
CTMS, a DHS organization establishing a new qualified position in the
DHS-CS will cover the cost of that qualified position using existing
funding. DHS organizations will need to review available funding and
position vacancies when creating qualified positions in the DHS-CS to
account for cost differences between qualified positions and positions
previously defined using other Federal personnel systems. Because CTMS
reflects shifts from existing talent management practices and methods,
including those for compensation, DHS anticipates that the costs of
qualified positions will vary from the costs a DHS organization
previously projected for vacant positions based on the talent
management practices of other existing personnel systems. These cost
differences may require DHS organizations to adjust strategies for
filling vacancies. In some cases, certain vacancies may need to remain
unfilled to ensure sufficient funding for one or more DHS-CS qualified
positions reflecting higher total costs than previously estimated. In
other cases, a DHS organization may realize cost savings as it is able
to hire highly-skilled DHS-CS employees with lower compensation and
total costs than the organization previously projected using other
existing Federal personnel systems. For example, a DHS organization
might have planned to hire an experienced cybersecurity expert given
previous recruiting challenges, but with CTMS, the organization may be
able to hire, competitively compensate, and quickly develop a DHS-CS
employee just beginning a career in cybersecurity.
4. CTMS & DHS-CS Benefits: Enhancing the Cybersecurity of the Nation
Cybersecurity is a matter of homeland security and one of the core
missions of DHS. For more than a decade, DHS has encountered challenges
recruiting and retaining mission-critical cybersecurity talent. During
that time, as cybersecurity threats facing the Nation have grown in
volume and sophistication, DHS has experienced spikes in attrition and
longstanding vacancies in some cybersecurity positions. To address the
DHS's ongoing challenges recruiting and retaining cybersecurity talent,
DHS is establishing CTMS under the authority in 6 U.S.C. 658.
The main benefit of this rulemaking is enhancing the Nation's
cybersecurity by enhancing DHS's capacity to recruit and retain top
cybersecurity talent to execute the DHS cybersecurity mission. The DHS-
CS employees hired, compensated, and developed using CTMS are expected
to impact execution of the DHS cybersecurity mission, including by
applying their CTMS qualifications to successfully and proficiently
perform DHS-CS cybersecurity work. Given the ever-evolving nature of
cybersecurity threats and risks, future costs of CTMS and the DHS-CS
cannot be projected with certainty, and similarly, the benefits of CTMS
and the DHS-CS cannot be estimated with certainty. While difficult for
DHS to quantify in advance, the cybersecurity work performed by DHS-CS
employees is anticipated to result in efficiencies in DHS cybersecurity
mission execution. In the course of DHS-CS employees performing their
work, DHS also anticipates that they will make contributions to
cybersecurity technologies, techniques, tactics, or procedures, which
will benefit both DHS and the Nation more broadly.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et. seq.), as amended
by the Small Business Regulatory Enforcement and Fairness Act of 1996,
requires an agency to prepare and make available to the public a
regulatory flexibility analysis that describes the effect of a proposed
rule on small entities (i.e., small businesses, small organizations,
and small governmental jurisdictions) when the agency is required to
publish a general notice of proposed rulemaking for a rule. Since a
general notice of proposed rulemaking is not necessary for this rule,
DHS is not required to prepare a regulatory flexibility analysis for
this rule.
C. Congressional Review Act
This rule is not covered by the Congressional Review Act (CRA),
codified at 5 U.S.C. 801-808, because it is excluded from the
definition of a ``rule'' under that Act. Under the CRA, certain rules
are subject to requirements concerning congressional review of those
rules. A ``rule'' for purposes of the CRA, however, does not include
``any rule relating to agency management or personnel.'' 5 U.S.C.
804(3)(B). As discussed in II. Basis and Purpose, this rule
implementing a new talent management system for a subset of DHS's
cybersecurity workforce is a matter relating to agency management or
personnel. As such, this rule is excluded from the definition of
``rule'' under the CRA and is thus not subject to the CRA's
requirements.
D. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531-1538,
requires each Federal agency to prepare a written statement assessing
the effects of any Federal mandate in a proposed or final agency rule
that may result in a $100 million or more expenditure (adjusted
annually for inflation) in any one year by State, local, and Tribal
governments, in the aggregate, or by the private sector. Because this
rule does not impose any Federal mandates on State, local, or Tribal
governments, in the aggregate, or the private sector, and because this
rule is exempt from written statement requirements under 2 U.S.C.
1532(a), this rule does not contain such a written statement.
E. E.O. 13132 (Federalism)
A rule has implications for federalism under E.O. 13132 if it has a
substantial direct effect on States, on the relationship between the
national government and the States, or on the distribution of power and
responsibilities among the various levels of government. Because this
rule implements a new talent management system and only addresses DHS
personnel matters, DHS determined in accordance with E.O. 13132 that
this rule does not have federalism implications warranting the
preparation of a federalism summary impact statement.
F. E.O. 12988 (Civil Justice Reform)
This rule meets applicable standards in sections 3(a) and 3(b)(2)
of E.O. 12988 to minimize litigation, eliminate ambiguity, and reduce
burden.
G. E.O. 13175 (Consultation and Coordination With Indian Tribal
Governments)
This rule does not have tribal implications under E.O. 13175,
because it would not have a substantial direct effect on one or more
Indian tribes, on the relationship between the Federal Government and
Indian tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian tribes.
H. National Environmental Policy Act
DHS analyzed this rule under Department of Homeland Security
Management Directive 023-01 Rev. 01 and Instruction Manual 023-01-001-
01 Rev. 01 (Instruction Manual), which establishes the procedures DHS
uses to comply with the National Environmental Policy Act of 1969
(NEPA), 42 U.S.C. 4321 et seq., and the Council on Environmental
Quality (CEQ) regulations implementing NEPA
[[Page 47893]]
codified at 40 CFR parts 1500-1508. The CEQ regulations allow Federal
agencies to establish categories of actions (``categorical
exclusions'') which experience has shown do not individually or
cumulatively have a significant effect on the human environment and,
therefore, do not require an Environmental Assessment or Environmental
Impact Statement. 40 CFR 1507.3(e)(2)(ii), 1501.4. Categorical
exclusions established by DHS are set forth in Appendix A of the
Instruction Manual. For an action to be categorically excluded, it must
satisfy each of the following three conditions: (1) The entire action
clearly fits within one or more of the categorical exclusions; (2) the
action is not a piece of a larger action; and (3) no extraordinary
circumstances exist that create the potential for a significant
environmental effect. Instruction Manual section V.B(2)(a)-(c).
Instruction Manual section V.B(2)(a)-(c).
This rule implements a new talent management system with
specialized practices for hiring, compensating, and developing
cybersecurity talent to support the Department's cybersecurity mission.
Because this rule is limited to agency management and personnel
matters, it clearly falls within the scope of DHS categorical
exclusions A1 (Personnel, fiscal, management, and administrative
activities, such as recruiting, processing, paying, recordkeeping,
resource management, budgeting, personnel actions, and travel) and
A3(a) (Promulgation of rules of a strictly administrative or procedural
nature), set forth in Appendix A of the Instruction Manual. This rule
also is not part of a larger action and presents no extraordinary
circumstances creating the potential for significant environmental
effects. Therefore, this action is categorically excluded and no
further NEPA analysis is required.
I. National Technology Transfer and Advance Act
The National Technology Transfer and Advancement Act, codified at
15 U.S.C. 272 note, directs agencies to use voluntary consensus
standards in their regulatory activities unless the agency provides
Congress, through OMB, with an explanation of why using these standards
would be inconsistent with applicable law or otherwise impractical.
Voluntary consensus standards are technical standards (e.g.,
specifications of materials, performance, design, or operation; test
methods; sampling procedures; and related management systems practices)
that are developed or adopted by voluntary consensus standards bodies.
This rule does not use technical standards. Therefore, DHS did not
consider the use of voluntary consensus standards.
J. E.O. 12630 (Governmental Actions and Interference With
Constitutionally Protected Property Rights)
This rule will not cause a taking of private property or otherwise
have taking implications under E.O. 12630.
K. E.O. 13045 (Protection of Children From Environmental Health Risks
and Safety Risks)
Executive Order 13045 requires agencies to consider the impacts of
environmental health risk or safety risk that may disproportionately
affect children. DHS has analyzed this rule under E.O. 13045 and
determined it is not a covered regulatory action. This rule is not an
economically significant rule and would not create an environmental
risk to health or risk to safety that might disproportionately affect
children.
L. E.O. 13211 (Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use)
DHS has analyzed this rule under E.O. 13211 and has determined that
it is not a ``significant energy action'' under that order because
although it is a ``significant regulatory action'' under E.O. 12866, it
is not likely to have a significant adverse effect on the supply,
distribution, or use of energy, and the Administrator of OMB's Office
of Information and Regulatory Affairs has not designated it as a
significant energy action.
M. Paperwork Reduction Act
This rule would call for no new collection of information under the
Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3520. Any collection of
information under this rule will be under existing collections of
information concerning Federal hiring and Federal employment.
List of Subjects in 6 CFR Part 158
Administrative practice and procedure, Employment, Government
employees, Reporting and recordkeeping requirements, and Wages.
0
For the reasons discussed in the preamble, DHS adds 6 CFR part 158 as
follows:
PART 158--CYBERSECURITY TALENT MANAGEMENT SYSTEM (CTMS)
Subpart A--General Provisions
Sec.
158.101 Purpose.
158.102 Scope of authority.
158.103 Coverage.
158.104 Definitions.
Subpart B--DHS Cybersecurity Service
158.201 Cybersecurity mission.
158.202 DHS Cybersecurity Service (DHS-CS).
158.203 Positions in the DHS-CS.
158.204 Employees in the DHS-CS.
158.205 Assignments in the DHS-CS.
Subpart C--Leadership
158.301 Administering CTMS and Managing the DHS-CS.
158.302 Cybersecurity Talent Management Board (CTMB).
158.303 Talent management principles.
158.304 Strategic talent priorities.
158.305 DHS-CS core values.
Subpart D--Strategic Talent Planning
158.401 Strategic talent planning process.
158.402 DHS-CS cybersecurity work and CTMS qualifications
identification.
158.403 Talent market analysis.
158.404 Work valuation system.
158.405 Exemption from General Schedule position classification.
Subpart E--Acquiring Talent
Talent Acquisition System
158.501 Talent acquisition system.
158.502 Exemption from other laws regarding appointment.
Sourcing and Recruiting
158.510 Strategic recruitment.
158.511 Outreach and sourcing.
158.512 Interview expenses.
Assessment and Hiring
158.520 Assessment.
158.521 Employment eligibility requirements and employment-related
criteria.
158.522 Selection and appointment.
158.523 Appointment types and circumstances.
158.524 Initial service period.
158.525 Hiring of former DHS-CS employees.
Subpart F--Compensating Talent
Compensation System
158.601 Compensation strategy.
158.602 Compensation system.
158.603 Employee compensation.
158.604 Aggregate compensation limit.
158.605 Exemption from other laws regarding compensation.
Salaries
158.610 Salary system.
158.611 Salary structure.
158.612 Local cybersecurity talent market supplement.
158.613 Salary range.
158.614 Salary limitations.
Salary Administration
158.620 Setting salaries.
158.621 Adjusting salaries.
158.622 Administering salary in accordance with relevant provisions
of other laws.
[[Page 47894]]
Recognition
158.630 Employee recognition.
158.631 Recognition adjustments.
158.632 Recognition payments.
158.633 Recognition time-off.
158.634 Honorary recognition.
Other Special Payments
158.640 Professional development and training.
158.641 Student loan repayments.
158.642 Special working conditions payment program.
158.643 Allowance in nonforeign areas.
Other Compensation Provided in Accordance With Relevant Provisions
of Other Laws
158.650 Holidays.
158.651 Leave.
158.652 Compensatory time-off for religious observance.
158.653 Other benefits.
158.654 Other payments.
158.655 Administering compensation in accordance with relevant
provisions of other laws.
Subpart G--Deploying Talent
158.701 Deployment program.
158.702 Designating qualified positions.
158.703 Designating and staffing assignments.
158.704 Official worksite.
158.705 Work scheduling.
158.706 Recordkeeping.
158.707 Details and opportunities outside DHS.
185.708 Directed assignments.
158.709 Exemption from other laws regarding deployment.
Subpart H--Developing Talent
158.801 Definitions.
158.802 Performance management program.
158.803 Career development program.
158.804 Appraisal reviews.
158.805 Mission impact reviews.
158.806 Development reviews.
Subpart I--Employee Right, Requirements, and Input
158.901 Federal employee rights and processes.
158.902 Ethics requirements.
158.903 Employee input program.
Subpart J--Advisory Appointments
158.1001 Advisory appointments and advisory appointees.
158.1002 Appointment to advisory appointees.
158.1003 Compensation for advisory appointees.
Authority : 6 U.S.C. 658.
Subpart H also issued under 5 U.S.C. Chapters 41 and 43; 5 CFR
parts 410 and 430.
Subpart A--General Provisions
Sec. 158.101 Purpose.
(a) Cybersecurity Talent Management System. This part contains
regulations establishing the Cybersecurity Talent Management System
(CTMS) and the resulting DHS Cybersecurity Service (DHS-CS). CTMS is
designed to recruit and retain individuals with the qualifications
necessary to execute the DHS cybersecurity mission and is also designed
to adapt to changes in cybersecurity work, the cybersecurity talent
market, and the DHS cybersecurity mission.
(b) DHS Cybersecurity Service. Under this part, the Secretary or
designee establishes and manages the DHS Cybersecurity Service (DHS-CS)
described in subpart B of this part.
(c) Regulations & policy. The regulations in this part provide the
policy framework for establishing and administering CTMS, and
establishing and managing the DHS-CS. The Secretary or designee
implements this part through CTMS policy defined in Sec. 158.104.
Sec. 158.102 Scope of authority.
(a) Authority. This part implements the Secretary's authority in 6
U.S.C. 658 and governs talent management involving the individuals
described in Sec. 158.103.
(b) Other laws superseded. Unless explicitly stated otherwise in
this part or explicitly provided otherwise by Congress, this part
supersedes all other provisions of law and policy relating to
appointment, number, classification, or compensation of employees that
the Secretary deems are incompatible with the approach to talent
management under this part. For compensation authorized under this
part, the Department provides all such compensation under the authority
in 6 U.S.C. 658, and also provides some types of such compensation in
accordance with relevant provisions of other laws, including provisions
in 5 U.S.C. and 5 CFR, to the extent compatible with the approach to
talent management under this part.
(c) Preservation of authority. Nothing in this part shall be deemed
or construed to limit the Secretary's authority in 6 U.S.C. 658.
Sec. 158.103 Coverage.
(a) Talent management. This part covers:
(1) Establishing and administering CTMS; and
(2) Establishing and managing the DHS-CS.
(b) Individuals. This part applies to any individual:
(1) Being recruited for employment under this part;
(2) Applying for employment under this part;
(3) Serving in a qualified position under this part;
(4) Managing, or participating in the management of, any DHS-CS
employee under this part, including as a supervisor or any other
employee of the Department who has the authority to take, direct others
to take, recommend, or approve any talent management action under this
part; or
(5) Serving on the Cybersecurity Talent Management Board described
in Sec. 158.302.
Sec. 158.104 Definitions.
As used in this part:
Additional compensation means the compensation described in Sec.
158.603(c).
Advisory appointment means an appointment to a qualified position
under subpart J of this part.
Annuitant has the same meaning as that term in 5 CFR 553.102.
Anticipated mission impact means the influence the Department
anticipates an individual will have on execution of the DHS
cybersecurity mission based on the individual's CTMS qualifications and
application of those qualifications to successfully and proficiently
perform DHS-CS cybersecurity work.
Assignment means a description of a specific subset of DHS-CS
cybersecurity work and a specific subset of CTMS qualifications
necessary to perform that work, the combination of which is associable
with a qualified position.
Break in service means the time when an employee is no longer on
the payroll of a Federal agency.
Continuing appointment means an appointment for an indefinite time
period to a qualified position.
CTMS policy means the Department's decisions implementing and
operationalizing the regulations in this part, and includes directives,
instructions, and operating guidance and procedures.
CTMS qualifications means qualifications identified under Sec.
158.402(c).
Cybersecurity incident has the same meaning as the term
``incident'' in 6 U.S.C. 659.
Cybersecurity risk has the same meaning as that term in 6 U.S.C.
659.
Cybersecurity Talent Management Board or CTMB means the group of
officials described in Sec. 158.302.
Cybersecurity Talent Management System or CTMS means the approach
to talent management, which encompasses the definitions, processes,
systems, and programs, established under this part.
Cybersecurity talent market means the availability, in terms of
supply and demand, of talent relating to cybersecurity and employment
relating to cybersecurity, including at other Federal agencies such as
the Department of Defense.
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Cybersecurity threat has the same meaning as that term in 6 U.S.C.
1501(5).
Cybersecurity work means activity involving mental or physical
effort, or both, to achieve results relating to cybersecurity.
Department or DHS means the Department of Homeland Security.
DHS cybersecurity mission means the cybersecurity mission described
in Sec. 158.201. As stated in that section, the DHS cybersecurity
mission encompasses all responsibilities of the Department relating to
cybersecurity.
DHS Cybersecurity Service or DHS-CS means the qualified positions
designated and established under this part and the employees appointed
to those positions under this part.
DHS-CS advisory appointee means a DHS-CS employee serving in an
advisory appointment under this part.
DHS-CS cybersecurity work means cybersecurity work identified under
Sec. 158.402(b).
DHS-CS employee means an employee serving in a qualified position
under this part.
Employee has the same meaning as that term in 5 U.S.C. 2105.
Excepted service has the same meaning as that term in 5 U.S.C.
2103.
Executive Schedule means the pay levels described in 5 U.S.C. 5311.
Former DHS-CS employee means an individual who previously served,
but is not currently serving, in a qualified position.
Functions has the same meaning as that term in 6 U.S.C. 101(9).
Mission impact means a DHS-CS employee's influence on execution of
the DHS cybersecurity mission by applying the employee's CTMS
qualifications to successfully and proficiently perform DHS-CS
cybersecurity work.
Mission-related requirements means characteristics of an
individual's expertise or characteristics of cybersecurity work, or
both (including cybersecurity talent market-related information), that
are associated with successful execution of the DHS cybersecurity
mission, and that are determined by officials with appropriate
decision-making authority.
Preference eligible has the same meaning as that term in 5 U.S.C.
2108.
Qualification means a quality of an individual that correlates with
the successful and proficient performance of cybersecurity work, such
as capability, experience and training, and education and
certification. A capability is a cluster of interrelated attributes
that is measurable or observable or both. Interrelated attributes
include knowledge, skills, abilities, behaviors, and other
characteristics.
Qualified position means CTMS qualifications and DHS-CS
cybersecurity work, the combination of which is associable with an
employee.
Renewable appointment means a time-limited appointment to a
qualified position.
Salary means an annual rate of pay under this part and is basic pay
for purposes under 5 U.S.C. and 5 CFR. The salary for a DHS-CS employee
is described in Sec. 158.603.
Secretary means the Secretary of Homeland Security.
Secretary or designee means the Secretary or an official or group
of officials authorized to act for the Secretary in the matter
concerned.
Strategic talent priorities means the priorities for CTMS and the
DHS-CS set under Sec. 158.304.
Supervisor means an employee of the Department who has authority to
hire, direct, assign, promote, reward, transfer, furlough, layoff,
recall, suspend, discipline, or remove employees, or to effectively
recommend such actions. A supervisor for a DHS-CS employee may be a
DHS-CS employee or may be an employee of the Department serving in a
position outside the DHS-CS.
Talent management means a systematic approach to linking employees
to mission and organizational goals through intentional strategies and
practices for hiring, compensating, and developing employees.
Talent management action has the same meaning as the term personnel
action in 5 U.S.C. 2302(a)(2) for applicable actions, and the terms
talent management action and personnel action may be used
interchangeably in this part.
Veteran has the same meaning as that term in 5 U.S.C. 2108.
Work level means a grouping of CTMS qualifications and DHS-CS
cybersecurity work with sufficiently similar characteristics to warrant
similar treatment in talent management under this part.
Work valuation means a methodology through which an organization
defines and evaluates the value of work and the value of individuals
capable of performing that work.
Subpart B--DHS Cybersecurity Service
Sec. 158.201 Cybersecurity mission.
Cybersecurity is a matter of homeland security and one of the core
missions of the Department. Congress and the President charge the
Department with responsibilities relating to cybersecurity and grant
the Secretary and other officials authorities to carry out those
cybersecurity responsibilities. The Department's cybersecurity mission
is dynamic to keep pace with the evolving cybersecurity risks and
cybersecurity threats facing the Nation and to adapt to any changes in
the Department's cybersecurity responsibilities. The DHS cybersecurity
mission encompasses all responsibilities of the Department relating to
cybersecurity.
Sec. 158.202 DHS Cybersecurity Service (DHS-CS).
The Secretary or designee establishes and manages the DHS-CS to
enhance the cybersecurity of the Nation through the most effective
execution of the DHS cybersecurity mission.
Sec. 158.203 Positions in the DHS-CS.
(a) Qualified positions. The Secretary or designee designates and
establishes qualified positions in the excepted service as the
Secretary or designee determines necessary for the most effective
execution of the DHS cybersecurity mission.
(b) Designating qualified positions. The Secretary or designee
designates qualified positions under the deployment program, described
in Sec. 158.701, as part of determining when the Department uses CTMS
to recruit and retain individuals possessing CTMS qualifications.
(c) Establishing qualified positions. The Secretary or designee
establishes a qualified position under the talent acquisition system,
described in Sec. 158.501 of this part, by the appointment of an
individual to a qualified position previously designated.
Sec. 158.204 Employees in the DHS-CS.
(a) DHS-CS employees. DHS-CS employees serve in the excepted
service, and the Department hires, compensates, and develops DHS-CS
employees using CTMS.
(b) Mission execution and assignments. DHS-CS employees execute the
DHS cybersecurity mission by applying their CTMS qualifications to
perform the DHS-CS cybersecurity work of their assignments.
(c) Mission impact and recognition. Application of a DHS-CS
employee's CTMS qualifications to successfully and proficiently perform
DHS-CS cybersecurity work results in mission impact attributable to
that employee. The Department reviews a DHS-CS employee's mission
impact as described in Sec. 158.805, which may result in recognition
as described in Sec. 158.630.
(d) Compensation. In alignment with the compensation strategy
described in
[[Page 47896]]
Sec. 158.601, the Department provides compensation to a DHS-CS
employee as described in Sec. 158.603.
(e) Recruitment and development. The Department strategically and
proactively recruits individuals as described in Sec. 158.510 and
develops DHS-CS employees under the career development program,
described in Sec. 158.803, that emphasizes continual learning.
(f) Core values. The Department uses the core values, described in
Sec. 158.305, to manage the DHS-CS.
Sec. 158.205 Assignments in the DHS-CS.
(a) Assignments generally. Each DHS-CS employee has one or more
assignments during the employee's service in the DHS-CS. The Department
designates and staffs assignments under the deployment program,
described in Sec. 158.701.
(b) Initial and subsequent assignments. The Department matches an
individual appointed to a qualified position with an initial assignment
as described in Sec. 158.703(c). The Department may match DHS-CS
employees with one or more subsequent assignments as described in Sec.
158.703(d).
Subpart C--Leadership
Sec. 158.301 Administering CTMS and Managing the DHS-CS.
(a) The Secretary or designee is responsible for administering CTMS
and managing the DHS-CS, including establishing and maintaining CTMS
policy.
(b) The Cybersecurity Talent Management Board (CTMB) is responsible
for assisting the Secretary or designee in administering CTMS and
managing the DHS-CS.
(c) The Secretary or designee, with assistance from the CTMB,
administers CTMS and manages the DHS-CS based on:
(1) Talent management principles described in Sec. 158.303;
(2) Strategic talent priorities described in Sec. 158.304; and
(3) DHS-CS core values described in Sec. 158.305.
Sec. 158.302 Cybersecurity Talent Management Board (CTMB).
(a) Purpose. As part of assisting the Secretary or designee in
administering CTMS and managing the DHS-CS, the CTMB periodically
evaluates whether CTMS is recruiting and retaining individuals with the
qualifications necessary to execute the DHS cybersecurity mission.
(b) Composition. The CTMB comprises:
(1) Officials representing DHS organizations involved in executing
the DHS cybersecurity mission; and
(2) Officials responsible for developing and administering talent
management policy within the Department.
(c) Membership. The Secretary or designee:
(1) Appoints officials to serve as members of the CTMB;
(2) Designates the Co-Chairs of the CTMB; and
(3) Ensures CTMB membership fulfills the membership requirements in
this section and includes appropriate representation, as determined by
the Secretary or designee, from across the Department.
(d) Operation. The Secretary or designee establishes the CTMB and
minimum requirements for CTMB operation.
(e) External Assistance. The CTMB may periodically designate an
independent evaluator to conduct an evaluation of CTMS.
Sec. 158.303 Talent management principles.
(a) Merit system principles. CTMS is designed and the Secretary or
designee, with assistance from the CTMB, administers CTMS based on the
principles of merit and fairness embodied in the merit system
principles in 5 U.S.C. 2301(b).
(b) Prohibited personnel practices. Any employee of the Department
who has the authority to take, direct others to take, recommend, or
approve any talent management action under this part must comply with 5
U.S.C. 2302(b) regarding talent management actions under this part.
(c) Equal employment opportunity principles. CTMS is designed and
the Secretary or designee, with assistance from the CTMB, administers
CTMS and manages the DHS-CS in accordance with applicable anti-
discrimination laws and policies. Thus, talent management actions under
this part that materially affect a term or condition of employment must
be free from discrimination.
Sec. 158.304 Strategic talent priorities.
The Secretary or designee, with assistance from the CTMB,
administers CTMS and manages the DHS-CS based on strategic talent
priorities, which the Secretary or designee sets on an ongoing basis
using:
(a) Information from strategic talent planning described in Sec.
158.401(c);
(b) The Department's financial and resources planning functions,
including the functions described in 6 U.S.C. 342(b);
(c) The Department's comprehensive strategic planning, including
the plan described in 5 U.S.C. 306; and
(d) Departmental priorities.
Sec. 158.305 DHS-CS core values.
The Secretary or designee, with assistance from the CTMB, manages
the DHS-CS based on the following core values:
(a) Expertise, including enhancing individual and collective
expertise regarding cybersecurity through continual learning;
(b) Innovation, including pursuing new ideas and methods regarding
cybersecurity work and cybersecurity generally; and
(c) Adaptability, including anticipating and adjusting to emergent
and future cybersecurity risks and cybersecurity threats.
Subpart D--Strategic Talent Planning
Sec. 158.401 Strategic talent planning process.
(a) Purpose. On an ongoing basis, the Secretary or designee engages
in a strategic talent planning process to ensure CTMS adapts to changes
in cybersecurity work, the cybersecurity talent market, and the DHS
cybersecurity mission.
(b) Process. The Secretary or designee establishes and administers
a strategic talent planning process that comprises:
(1) Identifying DHS-CS cybersecurity work and CTMS qualifications
based on the DHS cybersecurity mission as described in Sec. 158.402;
(2) Analyzing the cybersecurity talent market as described in Sec.
158.403;
(3) Describing and valuing DHS-CS cybersecurity work under the work
valuation system described in Sec. 158.404; and
(4) Ensuring CTMS administration and DHS-CS management is
continually informed by current, relevant information as described in
paragraph (c) of this section.
(c) Informing CTMS administration and DHS-CS management. The
Secretary or designee aggregates information generated in the processes
described in paragraphs (b)(1) through (3) of this section and
information from administering CTMS, and uses that aggregated
information to inform all other CTMS processes, systems, and programs
under this part.
Sec. 158.402 DHS-CS cybersecurity work and CTMS qualifications
identification.
On an ongoing basis, the Secretary or designee analyzes the DHS
cybersecurity mission to identify:
(a) The functions that execute the DHS cybersecurity mission;
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(b) The cybersecurity work required to perform, manage, or
supervise those functions; and
(c) The set of qualifications, identified in accordance with
applicable legal and professional guidelines, necessary to perform that
work.
Sec. 158.403 Talent market analysis.
On an ongoing basis, the Secretary or designee conducts an analysis
of the cybersecurity talent market, using generally recognized
compensation principles and practices to:
(a) Identify and monitor trends in both employment for and
availability of talent related to cybersecurity, including variations
in the cost of talent in local cybersecurity talent markets, defined in
Sec. 158.612(b)(1), or variations in the cost of living in those
markets, or both; and
(b) Identify leading strategies for recruiting and retaining talent
related to cybersecurity.
Sec. 158.404 Work valuation system.
(a) The Secretary or designee establishes and administers a person-
focused work valuation system to facilitate systematic management of
the DHS-CS and to address internal equity among DHS-CS employees. The
work valuation system is designed to reflect that:
(1) The DHS cybersecurity mission is dynamic;
(2) Cybersecurity work is constantly evolving; and
(3) Individuals, through application of their qualifications,
significantly influence how cybersecurity work is performed.
(b) The work valuation system is based on:
(1) CTMS qualifications; and
(2) DHS-CS cybersecurity work.
(c) The Department uses the work valuation system to establish work
and career structures, such as work levels, titles, ranks, and
specializations, and the Department uses these work and career
structures for purposes of talent management under this part, such as:
(1) Describing and categorizing DHS-CS employees, qualified
positions, and assignments;
(2) Assessing and selecting individuals for appointment to
qualified positions; and
(3) Compensating DHS-CS employees under this part, including
establishing and administering one or more salary structures, described
in Sec. 158.611.
(d) The Department may also use the work and career structures
described in paragraph (c) of this section for budget and fiscal
purposes related to administering CTMS and managing the DHS-CS.
Sec. 158.405 Exemption from General Schedule position classification.
The provisions of 5 U.S.C. Chapter 51 regarding classification and
5 CFR part 511 regarding classification under the General Schedule,
among other similar laws, do not apply under CTMS, to the DHS-CS, or to
talent management involving the individuals described in Sec. 158.103.
Subpart E--Acquiring Talent
Talent Acquisition System
Sec. 158.501 Talent acquisition system.
(a) The Secretary or designee establishes and administers a talent
acquisition system, in accordance with applicable legal and
professional guidelines governing the assessment and selection of
individuals, to identify and hire individuals possessing CTMS
qualifications.
(b) The talent acquisition system comprises the strategies,
programs, and processes described in this subpart and in CTMS policy
for proactively and strategically recruiting individuals, assessing
qualifications of individuals, and considering and selecting
individuals for employment in the DHS-CS and appointment to qualified
positions.
Sec. 158.502 Exemption from other laws regarding appointment.
The provisions of the following laws, among other similar laws, do
not apply under CTMS, to the DHS-CS, or to talent management involving
the individuals described in Sec. 158.103:
(a) The following provisions of 5 U.S.C.:
(1) Section 3320 regarding selection and appointment in the
excepted service; and
(2) Chapter 51 regarding classification; and
(b) The following provisions of 5 CFR:
(1) Part 211 regarding veteran preference;
(2) Part 302 regarding employment in the excepted service (except
Sec. 302.203 regarding disqualifying factors);
(3) Part 352 regarding reemployment rights (except subpart C
regarding detail and transfer of Federal employees to international
organizations); and
(4) Part 511 regarding classification under the General Schedule.
Sourcing and Recruiting
Sec. 158.510 Strategic recruitment.
(a) On an ongoing basis, the Department develops and implements
strategies for publicly communicating about the DHS cybersecurity
mission and the DHS-CS and for proactively recruiting individuals
likely to possess CTMS qualifications.
(b) The Department develops and implements strategies described in
paragraph (a) of this section based on:
(1) CTMS qualifications and DHS-CS cybersecurity work; and
(2) Strategic talent priorities.
(c) In developing and implementing strategies described in
paragraph (a) of this section, the Department may collaborate with:
(1) Other Federal agencies including the Department of Defense, the
Office of Personnel Management, and the Department of Veterans Affairs;
(2) Institutions of higher education, as defined in 20 U.S.C. 1001,
including historically Black colleges or universities, as described in
20 U.S.C. 1061(2), and other minority-serving institutions, as
described in 20 U.S.C. 1067q(a);
(3) National organizations, including veterans service
organizations recognized by the Department of Veterans Affairs, and
professional associations chartered by Congress under 36 U.S.C. Part B;
and
(4) Other similar organizations and groups.
(d) The Department considers the availability of preference
eligibles and veterans for appointment under this part, and develops
and implements specific strategies to proactively recruit such
individuals.
Sec. 158.511 Outreach and sourcing.
(a) The Department uses a variety of sources, including publicly
available information, to identify individuals or groups of individuals
for recruitment under this subpart.
(b) CTMS policy implementing this subpart addresses:
(1) Communication of opportunities for employment in the DHS-CS;
(2) Communication of the application processes to individuals being
recruited under this part or applying for employment under this part;
and
(3) Acceptance and treatment of applications for employment in the
DHS-CS, including minimum application requirements established under
this part.
Sec. 158.512 Interview expenses.
(a) An individual being considered for employment in the DHS-CS may
receive payment or reimbursement for travel to and from preemployment
interviews, which may include participating in the assessment program
described in Sec. 158.520.
(b) The Department pays or reimburses interview expenses, described
in paragraph (a) of this
[[Page 47898]]
section, in accordance with 5 U.S.C. 5706b and the Federal Travel
Regulations at 41 CFR chapters 301 through 304.
Assessment and Hiring
Sec. 158.520 Assessment.
(a) The Department determines individuals' CTMS qualifications
under the assessment program described in this section. To be
considered for employment in the DHS-CS, an individual must participate
in the assessment program and meet applicable rating or scoring
thresholds in each assessment process in which that individual
participates.
(b) The Department establishes and administers an assessment
program, with one or more assessment processes, based on CTMS
qualifications. The assessment program is designed to efficiently and
accurately determine individuals' CTMS qualifications.
(c) Each assessment process compares the qualifications of an
individual to CTMS qualifications. The Department develops and
administers each assessment process in accordance with applicable legal
and professional guidelines governing the assessment and selection of
individuals.
(d) An assessment process may use standardized instruments and
procedures to measure qualifications. An assessment process may also
use demonstrations of qualifications determined appropriate by the
Secretary or designee, such as rewards earned from the cybersecurity
competition described in Executive Order 13870, published, peer-
reviewed cybersecurity research, or a cybersecurity invention or
discovery granted a patent under 35 U.S.C. Part II.
(e) The Department makes available information to assist
individuals in understanding the purpose of, and preparing for
participation in, an assessment process.
(f) To maintain the objectivity and integrity of the assessment
program, the Department maintains control over the security and release
of materials relating to the assessment program, including assessment
plans, validation studies, and other content. Except as otherwise
required by law, the Department does not release the following:
(1) Sensitive materials relating to the design and administration
of the assessment program;
(2) Names or lists of individuals applying for employment in the
DHS-CS; and
(3) Results or relative ratings of individuals who participated in
the assessment program.
Sec. 158.521 Employment eligibility requirements and employment-
related criteria.
(a) Employment eligibility requirements. To be eligible for
employment in the DHS-CS, an individual must:
(1) Meet U.S. citizenship requirements as described in governing
Appropriation Acts; and
(2) Comply with Selective Service System requirements described in
5 U.S.C. 3328.
(b) Employment-related criteria. The Department determines criteria
related to employment in the DHS-CS, reviews individuals applying for
employment in the DHS-CS using such criteria, and, as part of an offer
of appointment to a qualified position, provides written notice of
specific, applicable employment-related criteria necessary to obtain
and maintain, employment in the DHS-CS. Employment-related criteria
include:
(1) Fitness standards and similar factors described in Executive
orders, 5 CFR 302.203, and policies of the Department;
(2) Personnel security requirements related to fitness standards
and similar factors described in paragraph (b)(1) of this section;
(3) Geographic mobility requirements; and
(4) Other criteria related to any aspect of appointment or
employment, including selection, appointments, qualified positions, or
assignments, or some or all of the foregoing.
(c) Accepting and maintaining employment-related criteria. To be
appointed to a qualified position, an individual must accept and
satisfy the specific, applicable employment-related criteria associated
with the individual's offer of appointment concurrent with the
individual's acceptance of the offer of appointment. An individual's
acceptance of an appointment to a qualified position constitutes
acceptance of applicable employment-related criteria for that qualified
position and the individual's agreement to satisfy and maintain those
criteria.
(d) Changes to employment-related criteria. Employment-related
criteria may change, and DHS-CS employees may be required to accept and
satisfy such changes to maintain employment in the DHS-CS.
(e) Disqualification. The Department may disqualify an individual
from consideration for employment in the DHS-CS or from appointment to
a qualified position for: Providing false information to the
Department, engaging in dishonest conduct with the Department,
unauthorized disclosure of assessment materials for purposes of giving
any applicant an advantage in the assessment process, or other actions
related to an individual's character or conduct that may negatively
impact the integrity or efficiency of the DHS-CS.
Sec. 158.522 Selection and appointment.
(a) The Department selects an individual for employment in the DHS-
CS based on the individual's CTMS qualifications, as determined under
the assessment program described in Sec. 158.520.
(b) Prior to finalizing the selection of an individual for
employment in the DHS-CS, the Department considers the availability of
preference eligibles for appointment under this part, including those
recruited based on specific strategies described in Sec. 158.510(d),
who have participated in the assessment program and met applicable
rating or scoring thresholds, as described in Sec. 158.520(a). When a
selection is imminent and there are both preference eligibles and non-
preference eligibles undergoing final consideration, the Department
regards status as a preference eligible as a positive factor in
accordance with CTMS policy.
(c) The Department appoints an individual to a qualified position
under the authority in 6 U.S.C. 658 and this part, and all such
appointments are in the excepted service and are one of the following
types of appointment:
(1) A renewable appointment under Sec. 158.523(a);
(2) A continuing appointment under Sec. 158.523(b); or
(3) An advisory appointment under Sec. 158.523(c).
(d) As part of selecting an individual for employment in the DHS-CS
and appointing an individual to a qualified position under this part,
the Department:
(1) Determines applicable work and career structures, including the
individual's initial work level, using the work valuation system
described in Sec. 158.404;
(2) Sets the individual's initial salary using the salary system as
described in Sec. 158.620; and
(3) Matches the individual with an initial assignment as described
in Sec. 158.703(c).
(e) No qualified position may be established through the non-
competitive conversion of a current Federal employee from an
appointment made outside the authority of this part to an appointment
made under this part.
(f) An individual who accepts an appointment to a qualified
position under this part voluntarily accepts an appointment in the
excepted service.
[[Page 47899]]
(g) A DHS-CS employee serves in the same qualified position
throughout a single continuing appointment under this part and
throughout multiple, consecutive renewable or continuing appointments
under this part, regardless of any changes in the employee's
assignments, including primary DHS organization, or changes in the
employee's official worksite.
Sec. 158.523 Appointment types and circumstances.
(a) Renewable appointment. Appointment of an individual to a
renewable appointment is for up to three years. The Department may
renew a renewable appointment for any time period of up to three years,
subject to any limitation in CTMS policy regarding the number of
renewals. Subject to any additional limitation in CTMS policy, the
Department may change an unexpired renewable appointment to a
continuing appointment for a DHS-CS employee receiving a salary in the
standard range described in Sec. 158.613(b). The following types of
renewable appointments include special conditions:
(1) Reemployed annuitant. Under this part, the Department may
appoint an annuitant to a qualified position and must appoint the
annuitant to a renewable appointment. An annuitant appointed to a
qualified position serves at the will of the Secretary.
(2) Uncompensated service. Under this part, the Department may
appoint to a qualified position an individual to provide uncompensated
service, any such service is gratuitous service, and the Department
must appoint such an individual to a renewable appointment. The
gratuitous nature of service must be a condition of employment of such
an appointment. The Secretary or designee must approve the appointment
of each individual providing uncompensated service by name, and such
individual if not providing gratuitous service would otherwise be
eligible to receive a salary under this part at or above the amount
described in Sec. 158.614(a)(2). An individual providing uncompensated
service serves at the will of the Secretary. An individual for
appointment to a qualified position to provide uncompensated service
need not be assessed under this part, and the documentation associated
with that individual's qualified position need not include all the
information listed in Sec. 158.706(c).
(b) Continuing appointment. Appointment of an individual to a
continuing appointment is for an indefinite time period.
(c) Advisory appointment. Appointment of an individual, including a
former DHS-CS employee, to an advisory appointment is governed by
subpart J of this part.
(d) Former DHS-CS employee. Appointment under this part of a former
DHS-CS employee is governed by Sec. 158.525.
(e) Restoration to duty from uniformed service or compensable
injury. In accordance with 5 CFR part 353, the Department restores to
duty a DHS-CS employee who is a covered person described in 5 CFR
353.103.
(f) Current and former political appointees. Appointment under this
part of a current political appointee and a former political appointee,
both as defined by OPM, may be subject to additional requirements
outside of this part, including coordination with OPM.
Sec. 158.524 Initial service period.
(a) All individuals appointed under this part serve an initial
service period that constitutes a probationary period of three years
beginning on the date of appointment.
(b) Except as stated in paragraph (c) of this section, service in
the DHS-CS counts toward completion of a current initial service period
under paragraph (a) of this section. No other service in an appointment
made outside the authority of this part may count toward completion of
an initial service period under paragraph (a) of this section.
(c) Service as a DHS-CS advisory appointee, as a reemployed
annuitant described in Sec. 158.523(a)(1), or providing uncompensated
service described in Sec. 158.523(a)(2) does not count towards
completion of an initial service period in a subsequent appointment to
a qualified position.
(d) CTMS policy implementing this section addresses computation of
each DHS-CS employee's initial service period, including accounting for
working schedules other than full-time schedules described in Sec.
158.705 and for periods of absence while in pay and nonpay statuses.
Sec. 158.525 Hiring of former DHS-CS employees.
(a) Rejoining the DHS-CS. To facilitate future service in the DHS-
CS by former DHS-CS employees, the Department aims to:
(1) Maintain communication with former DHS-CS employees to
understand their interest in future service in the DHS-CS;
(2) Provide opportunities for former DHS-CS employees to be
considered for appointment again to qualified positions; and
(3) Acknowledge former DHS-CS employees' enhancements to
qualifications while outside the DHS-CS.
(b) Rehiring. Except as provided in paragraphs (c) through (e) of
this section, to be appointed again to a qualified position a former
DHS-CS employee must:
(1) Participate again in the assessment program described in Sec.
158.520 for the Department to determine the former DHS-CS employee's
current CTMS qualifications; and
(2) Meet employment eligibility and accept and satisfy applicable
employment-related criteria as described in Sec. 158.521.
(c) Reassessment. A former DHS-CS employee whose most recent
appointment to a qualified position was a renewable appointment or a
continuing appointment must participate again in the assessment program
described in Sec. 158.520 unless the Department determines otherwise
based on factors relevant to the former DHS-CS employee, such as:
(1) Time elapsed since the former DHS-CS employee's most recent
appointment to a qualified position under this part;
(2) Similarity of cybersecurity work performed by the former DHS-CS
employee since that individual's most recent appointment to a qualified
position under this part; or
(3) Similarity of the former DHS-CS employee's CTMS qualifications
during the former employee's most recent appointment under this part to
the CTMS qualifications of a newly identified assignment under the
deployment program in Sec. 158.701.
(d) Former advisory and political appointees. Appointment under
this part of a former DHS-CS employee who previously served in an
advisory appointment or other political appointment may be subject to
additional requirements, including coordination with the Office of
Personnel Management.
(e) Prospective advisory appointees. Appointment of any former DHS-
CS employee to an advisory appointment is governed by subpart J of this
part.
Subpart F--Compensating Talent
Compensation System
Sec. 158.601 Compensation strategy.
To ensure the DHS-CS fulfills its purpose, as stated in Sec.
158.202, the Secretary or designee aims to establish and administer a
compensation system, described in Sec. 158.602, that:
(a) Ensures the compensation for DHS-CS employees is sufficiently
[[Page 47900]]
competitive to recruit and retain individuals possessing CTMS
qualifications;
(b) Values, encourages, and recognizes, in alignment with the DHS-
CS core values described in Sec. 158.305:
(1) Exceptional CTMS qualifications and mission impact,
(2) Excellence and innovation in the performance of DHS-CS
cybersecurity work, and
(3) Continual learning to adapt to evolving cybersecurity risks and
cybersecurity threats; and
(c) Acknowledges the unpredictable nature of cybersecurity work and
the expectation that DHS-CS employees occasionally work unusual hours
and extended hours, as needed, to execute the DHS cybersecurity
mission, especially in response to exigent circumstances and
emergencies, including cybersecurity incidents; and
(d) Reflects an understanding of the cybersecurity talent market,
including:
(1) Leading compensation practices and trends,
(2) Current cybersecurity work expectations and arrangements, and
(3) An understanding of the concepts of total compensation and
total rewards.
Sec. 158.602 Compensation system.
(a) The Secretary or designee establishes and administers a
compensation system based on:
(1) The compensation strategy in Sec. 158.601;
(2) Information from strategic talent planning described in Sec.
158.401(c);
(3) Generally recognized compensation principles and practices; and
(4) Strategic talent priorities.
(b) The compensation system comprises:
(1) The salary system described in Sec. 158.610; and
(2) Additional compensation described in Sec. 158.603.
Sec. 158.603 Employee compensation.
(a) Compensation. As compensation for service in the DHS-CS, a DHS-
CS employee receives a salary as described in paragraph (b) of this
section. A DHS-CS employee may also receive additional compensation as
described in paragraph (c) of this section.
(b) Salary. Except as provided in paragraphs (b)(1) and (2) of this
section, a DHS-CS employee receives a salary under the salary system
described in Sec. 158.610. The Department sets a DHS-CS employee's
salary as described in Sec. 158.620, and salary may include a local
cybersecurity talent market supplement described in Sec. 158.612. The
Department adjusts a DHS-CS employee's salary as described in Sec.
158.621.
(1) Uncompensated service. A DHS-CS employee providing
uncompensated service described in Sec. 158.523(a)(2) does not receive
a salary under this part.
(2) Advisory appointees. A DHS-CS advisory appointee receives a
salary as described under subpart J of this part.
(c) Additional compensation. In alignment with the compensation
strategy in Sec. 158.601 and subject to the requirements of this
subpart F, the Department may provide the additional compensation
described in paragraph (c)(1) of this section to DHS-CS employees,
unless a DHS-CS employee is providing uncompensated service under Sec.
158.523(a)(2).
(1) Types. Additional compensation under CTMS is:
(i) Recognition under Sec. Sec. 158.632 through 158.634;
(ii) Other special payments under Sec. Sec. 158.640 through
158.643; and
(iii) Other types of compensation, including leave and benefits,
authorized under Sec. Sec. 158.650 through 158.654 and provided in
accordance with relevant provisions of other laws.
(2) Combining types. A DHS-CS employee, except such an employee
providing uncompensated service and a DHS-CS advisory appointee, may
receive any type of additional compensation described in paragraph
(c)(1) of this section in combination with any other such type subject
to the requirements of this subpart F, and subject to the limit
described in paragraph (c)(3) of this section.
(3) Limit. Additional compensation described in paragraph (c)(1) of
this section is subject to, and may be limited by, the aggregate
compensation limit described in Sec. 158.604.
(4) Advisory appointees. A DHS-CS advisory appointee may receive
additional compensation as described in subpart J of this part.
(5) Department discretion. Any payment or nonpayment of additional
compensation under this part, or the amount of any such compensation,
is under the Department's discretion, and may be reviewable only as
provided for under subpart I of this part.
Sec. 158.604 Aggregate compensation limit.
(a) Limiting aggregate compensation. A DHS-CS employee may not
receive additional compensation listed in in paragraphs (b)(1)(i)
through (iv) of this section if such receipt would cause a DHS-CS
employee's aggregate compensation for a calendar year to exceed the
aggregate compensation limit applicable to that employee. A DHS-CS
employee's applicable aggregate compensation limit is the limit amount
assigned to the subrange of a salary structure, described in Sec.
158.611, that contains the employee's salary. The Department assigns an
aggregate compensation limit to each subrange in a salary structure by
assigning the amounts referenced in 5 U.S.C. 5307(d)(1) in ascending
order to the subranges, such that each subrange has an aggregate
compensation limit that is greater than or equal to the salary maximum
of that subrange.
(b) Aggregate compensation. For purposes of this part--
(1) A DHS-CS employee's aggregate compensation means the total of
the employee's salary, including any local cybersecurity talent market
supplement, and the following types of additional compensation the
employee receives under this part:
(i) Recognition payments;
(ii) Payments for special working conditions;
(iii) Payments for quarters allowances, overseas differentials and
allowances, and remote worksite allowances, foreign currency
allowances, and hostile fire pay; and
(iv) Other similar payments described in CTMS policy as being
authorized under this part and provided in accordance with other
relevant provisions of law.
(2) The following types of compensation a DHS-CS employee receives
under this part are excluded from the employee's aggregate
compensation:
(i) Payments or reimbursements for professional development and
training;
(ii) CTMS student loan repayments;
(iii) CTMS allowances in nonforeign areas;
(iv) Back pay because of an unjustified or unwarranted talent
management action;
(v) Severance pay;
(vi) Lump-sum payments for accumulated and accrued annual leave;
(vii) Voluntary separation incentive payments;
(viii) Payments for reservist differentials; and
(ix) Monetary value of any honorary recognition, leave, or other
benefits.
(c) Forfeiture of compensation exceeding limit amount. Except under
corrective action described in paragraph (d) of this section, a DHS-CS
employee may not receive any portion of a payment for the additional
compensation listed in paragraphs (b)(1)(i) through (iv) of this
section that would cause the employee's aggregate compensation in any
calendar year to exceed the applicable limit amount for that employee
described in paragraph
[[Page 47901]]
(a) of this section and the DHS-CS employee forfeits any such portion
of a payment.
(d) Corrective actions. The Department may make a corrective action
if the Department underestimated or overestimated a DHS-CS employee's
aggregate compensation in a calendar year, including if an applicable
aggregate compensation limit amount changed, resulting in the employee
receiving aggregate compensation in excess of the applicable limit
amount for a DHS-CS employee or the Department limiting or prohibiting
an employee's aggregate compensation incorrectly. Corrective actions
may include the Secretary or designee waiving a debt to the Federal
Government for a DHS-CS employee under 5 U.S.C. 5584, if warranted, or
making appropriate corrective payments to a DHS-CS employee.
Sec. 158.605 Exemption from other laws regarding compensation.
The provisions of the following laws, among other similar laws, do
not apply under CTMS, to the DHS-CS, or to talent management involving
the individuals described in Sec. 158.103:
(a) The following provisions of 5 U.S.C.:
(1) Chapter 51 regarding classification,
(2) Chapter 53 regarding pay rates and systems (except section 5379
regarding student loan repayments),
(3) Chapter 55, Subchapter V regarding premium pay (except section
5550a regarding compensatory time off for religious observances),
(4) Chapter 61 regarding work schedules (except sections 6103-6104
regarding holidays),
(5) Section 4502 regarding cash awards and time-off awards,
(6) Section 4503 regarding agency awards (except regarding honorary
recognition),
(7) Section 4505a regarding performance-based cash awards,
(8) Sections 4507 and 4507a regarding presidential rank awards,
(9) Section 5307 regarding limitation on certain payments,
(10) Section 5384 regarding performance awards for the Senior
Executive Service,
(11) Section 5753 regarding recruitment and relocation bonuses,
(12) Section 5754 regarding retention bonuses,
(13) Section 5755 regarding supervisory differentials, and
(14) Section 5757 regarding extended assignment incentives;
(b) The provisions of 29 U.S.C. 206 and 207 regarding minimum wage
payments and overtime pay under the Fair Labor Standards Act of 1938,
as amended; and
(c) The following provisions of 5 CFR:
(1) Part 451 regarding awards (except regarding honorary
recognition);
(2) Part 511 regarding classification under the General Schedule;
(3) Part 530 regarding pay rates and systems;
(4) Part 531 regarding pay under the General Schedule;
(5) Part 534 regarding pay under other systems;
(6) Part 536 regarding grade and pay retention;
(7) Part 550, subparts A regarding premium pay, I regarding pay for
duty involving physical hardship or hazard, M regarding firefighter
pay, N regarding compensatory time off for travel, and P regarding
overtime pay for border patrol agents;
(8) Part 551 regarding pay administration under the Fair Labor
Standards Act;
(9) Part 575 regarding recruitment, relocation, and retention
incentives, supervisory differentials; and extended assignment
incentives; and
(10) Part 610 regarding hours of duty (except subpart B regarding
holidays).
Salaries
Sec. 158.610 Salary system.
(a) Under the compensation system, described in Sec. 158.602 of
this part, the Department establishes and administers a salary system
with the goals of maintaining:
(1) Sufficiently competitive salaries for DHS-CS employees as
stated in Sec. 158.601(a); and
(2) Equitable salaries among DHS-CS employees.
(b) The salary system comprises:
(1) At least one salary structure, described in Sec. 158.611 of
this part, bounded by the salary range described in Sec. 158.613 and
incorporating the salary limitations described in Sec. 158.614;
(2) The process for providing a local cybersecurity talent market
supplement described in Sec. 158.612; and
(3) The salary administration framework described in Sec. Sec.
158.620 through 158.622.
Sec. 158.611 Salary structure.
(a) Under the salary system, described in Sec. 158.610, the
Department establishes and administers one or more salary structures
based on the strategy, information, principles and practices, and
priorities listed in Sec. 158.602(a).
(b) A salary structure:
(1) Is bounded by the salary range described in Sec. 158.613;
(2) Incorporates, as described in paragraph (d) of this section,
the salary limitations described in Sec. 158.614; and
(3) May incorporate other salary and cost control strategies, such
as control points.
(c) A salary structure includes subranges, within the salary range
described in Sec. 158.613 that are associated with work levels
established by the work valuation system, described in Sec. 158.404.
Each such subrange is associated with at least one such work level.
(d) The Department incorporates the salary limitations described in
Sec. 158.614 into a salary structure by assigning each such salary
limitation to at least one subrange of the salary structure. The
Department assigns such salary limitations in ascending order to the
subranges such that each subrange has a salary limitation that is
greater than or equal to the salary maximum of that subrange.
(e) The Department may adjust a salary structure annually, or as
the Secretary or designee determines necessary, based on the strategy,
information, principles and practices, and priorities listed in Sec.
158.602(a).
Sec. 158.612 Local cybersecurity talent market supplement (LCTMS).
(a) General. The Department may provide a DHS-CS employee a LCTMS
to ensure the employee receives a sufficiently competitive salary, as
described in Sec. 158.610(a). A LCTMS accounts for the difference
between a salary as determined under a salary structure, described in
Sec. 158.611, and the Department's determination as to what
constitutes a sufficiently competitive salary for that local
cybersecurity talent market. The Department determines whether a LCTMS
is necessary, and establishes and periodically adjusts local
cybersecurity talent markets and local cybersecurity talent market
supplement percentages, based on the strategy, information, principles
and practices, and priorities listed in Sec. 158.602(a).
(b) Definitions. As used in this section:
(1) Local cybersecurity talent market means the cybersecurity
talent market in a geographic area that the Department defines based on
the talent market analysis described in Sec. 158.403, and that may
incorporate any pay locality established or modified under 5 U.S.C.
5304.
(2) Local cybersecurity talent market supplement percentage means a
percentage the Department assigns to a local cybersecurity talent
market to
[[Page 47902]]
increase the amount of a salary provided under a salary structure.
(c) Salary supplement. A LCTMS is considered part of salary under
this part and for purposes of applying the aggregate compensation limit
described in Sec. 158.604. A LCTMS is also basic pay for purposes
under 5 U.S.C. and 5 CFR, except for purposes of determining pay under
5 U.S.C. 7511 and 7512 and 5 CFR part 752.
(d) Eligibility and termination. (1) The Department determines
eligibility for a LCTMS under this section and CTMS policy implementing
this section. A DHS-CS employee is eligible for a LCTMS if the
employee's official worksite, as determined under Sec. 158.704, is
located in a local cybersecurity talent market with an assigned local
cybersecurity talent market supplement percentage for the salary
structure under which the employee's salary is provided.
(2) The Department terminates a LCTMS a DHS-CS employee receives
when the employee's official worksite, as determined under Sec.
158.704, is no longer in a local cybersecurity talent market with an
assigned local cybersecurity talent market supplement percentage, or
the salary structure under which the employee's salary is provided no
longer has an assigned local cybersecurity labor market supplement, or
both.
(3) A reduction in salary for a DHS-CS employee because of a change
in any LCTMS for that employee is not a reduction in pay for the
purposes of 5 U.S.C. 7512 and 5 CFR part 752.
(e) Limitation. A DHS-CS employee may not receive, and is not
entitled to, any portion of a LCTMS that would cause the employee's
salary to exceed the applicable salary limitation assigned to the
subrange of a salary structure as described in Sec. 158.611 that
contains the employee's salary, but the employee may receive the
portion of such a LCTMS that would not cause the employee's salary to
exceed the applicable salary limitation. A DHS-CS employee may receive
a LCTMS that would cause the employee's salary to be in the extended
range, described in Sec. 158.613(c), only if the Secretary or designee
invokes the extended range under Sec. 158.613(c)(2) for that employee.
Sec. 158.613 Salary range.
(a) Range. The salary range provides the boundaries of the salary
system described in Sec. 158.610. The salary range comprises a
standard range and an extended range, and the standard range applies
unless the Secretary or designee invokes the extended range under
paragraph (c) of this section.
(b) Standard range. The upper limit of the standard range is equal
to the amount of total annual compensation payable to the Vice
President under 3 U.S.C. 104.
(c) Extended range. The upper limit of the extended range is 150
percent of the annual rate of basic pay for level I of the Executive
Schedule (150% of EX-I). Only DHS-CS employees serving in renewable
appointments may receive a salary amount in the extended range, and
only if the Secretary or designee invokes the extended range for those
employees as described in this paragraph (c).
(1) The Secretary or designee may invoke the extended range for a
DHS-CS employee when the Secretary or designee determines, based on the
compensation strategy in Sec. 158.601, that the employee's
qualifications, the employee's mission impact, and mission-related
requirements warrant adjusting the employee's salary beyond the
standard range. The Secretary or designee must approve the salary
adjustment of each such employee by name, and to receive a salary in
the extended range the employee must either already be in a renewable
appointment or accept a renewable appointment. While the employee is
receiving a salary in an amount in the extended range, the Department
may not change that employee's appointment to a continuing appointment.
(2) The Secretary or designee may invoke the extended range for an
individual selected for appointment to a qualified position when the
Secretary or designee determines, based on the compensation strategy in
Sec. 158.601, that the individual's qualifications, the individual's
anticipated mission impact, and mission-related requirements warrant
setting the individual's salary beyond the standard range. The
Secretary or designee must approve the appointment of each such
individual to a qualified position by name, and the individual must be
appointed to a renewable appointment only. While that individual is
receiving a salary under this part in an amount in the extended range,
the Department may not change that individual's appointment to a
continuing appointment at any time.
(d) Maximum. No DHS-CS employee may receive a salary under this
part in excess of 150% of EX-I.
Sec. 158.614 Salary limitations.
(a) The salary system, described in Sec. 158.610, has the
following limitations on maximum rates of salary that apply within the
CTMS salary range described in Sec. 158.613 of this part:
(1) The annual rate of basic pay for GS-15, step 10 under the
General Schedule (excluding locality pay or any other additional pay as
defined in 5 CFR chapter 1);
(2) The annual rate of basic pay for level IV of the Executive
Schedule;
(3) The annual rate of basic pay for level II of the Executive
Schedule;
(4) The annual rate of basic pay for level I of the Executive
Schedule; and
(5) The total annual compensation payable to the Vice President
under 3 U.S.C. 104.
(b) The Department may establish additional limitations on maximum
rates of salary for the salary system.
(c) The salary system incorporates each limitation on maximum rates
of salary described in this section into each salary structure
established under Sec. 158.611.
Salary Administration
Sec. 158.620 Setting salaries.
(a) The Department sets the salary for an individual accepting an
appointment to a qualified position as part of selection and
appointment of the individual, described in Sec. 158.522. The
Department sets the individual's salary within a subrange of a salary
structure described in Sec. 158.611 based on consideration of:
(1) The individual's CTMS qualifications, determined under the
assessment program described in Sec. 158.520;
(2) Applicable work and career structures, including the
individual's initial work level, determined as part of selection and
appointment under Sec. 158.522;
(3) The individual's anticipated mission impact;
(4) Mission-related requirements; and
(5) Strategic talent priorities.
(b) In setting the salary for an individual appointed to a
qualified position under this part, the Department may set the
individual's salary without regard to any prior salary of the
individual, including any salary or basic pay while serving in a
previous appointment under this part or in another previous Federal
appointment made outside the authority of this part.
(c) In setting the salary for an individual appointed to a
qualified position under this part, the Department may provide a local
cybersecurity talent market supplement described in Sec. 158.612.
Sec. 158.621 Adjusting salaries.
(a) The Department adjusts a DHS-CS employee's salary, or the
salaries of a group of DHS-CS employees, by paying a recognition
adjustment under
[[Page 47903]]
Sec. 158.631, or paying a local cybersecurity talent market supplement
under Sec. 158.612, or both.
(b) The Department does not provide DHS-CS employees with any
automatic salary increase or any salary increase based on length of
service in the DHS-CS or in any position outside the DHS-CS.
(c) If the Department adjusts a salary structure under Sec.
158.611(e) that results in an increase to the salary minimum for one or
more subranges of the salary structure, for any DHS-CS employee
receiving a salary in an affected subrange at the affected salary
minimum, DHS adjusts the employee's salary to reflect the adjustment to
the salary structure and the new salary minimum for the affected
subrange. Such a salary adjustment is not considered a recognition
adjustment under Sec. 158.631.
Sec. 158.622 Administering salary in accordance with relevant
provisions of other laws.
(a) Except as stated in paragraph (b) of this section, the
Department administers salary under this part in accordance with the
provisions of 5 CFR part 550 regarding pay administration generally.
(b) The following provisions of 5 CFR part 550 do not apply to
administering salary under this part and do not apply under CTMS, to
the DHS-CS, or to talent management involving the individuals described
in Sec. 158.103 of this part:
(1) Subpart A regarding premium pay;
(2) Subpart I regarding pay for duty involving physical hardship or
hazard;
(3) Subpart M regarding firefighter pay;
(4) Subpart N compensatory time-off for travel; and
(5) Subpart P regarding overtime for board patrol agents.
(c) The Department also administers salary under this part in
accordance with the provisions of the following:
(1) 5 U.S.C. 5520, 42 U.S.C. 659 and 5 CFR parts 581 and 582,
regarding garnishment;
(2) 31 U.S.C. 3702 and 5 CFR part 178 regarding claims settlement;
(3) 31 U.S.C. 3711 and 3716 and 31 CFR chapter IX parts 900 through
904 regarding debt collection;
(4) 5 U.S.C. Chapter 55 Subchapter VII regarding payments to
missing employees; and
(5) Other relevant provisions of other laws specifically adopted in
CTMS policy.
(d) For purposes of salary administration under this section, the
Department administers salary based on consideration of a DHS-CS
employee's work schedule under the work scheduling system, described in
Sec. 158.705, and may convert the employee's salary into an hourly
rate, biweekly rate, or other rate.
Recognition
Sec. 158.630 Employee recognition.
(a) DHS-CS employees. In alignment with the compensation strategy
in Sec. 158.601 and the performance management program described in
Sec. 158.802 of this part, the Department may provide recognition
under Sec. Sec. 158.631 through 158.634, on a periodic or ad hoc
basis, to a DHS-CS employee based on the employee's mission impact. In
providing such recognition, the Department may also consider mission-
related requirements and strategic talent priorities.
(b) Prospective employees. In alignment with the compensation
strategy in Sec. 158.601, the Department may offer, and provide upon
appointment, recognition payments under Sec. 158.632(b) and
recognition time-off under Sec. 158.633(b), on a periodic or ad hoc
basis, to an individual selected for employment in the DHS-CS based on:
(1) The individual's CTMS qualifications determined under the
assessment program described in Sec. 158.520;
(2) The individual's anticipated mission impact;
(3) Mission-related requirements; and
(4) Strategic talent priorities.
(c) Eligibility. The Department determines eligibility for
recognition under this section, Sec. Sec. 158.631 through 158.634, and
CTMS policy implementing this section. The Department may defer
providing recognition to a DHS-CS employee under this part if the
Department is in the process of determining whether the employee's
performance is unacceptable, as defined in 5 U.S.C. 4301(3), or whether
the employee has engaged in misconduct. If the Department determines a
DHS-CS employee's performance is unacceptable, as defined in 5 U.S.C.
4301(3), or the employee receives an unacceptable rating of record
under Sec. 158.804, or the Department determines the employee has
engaged in misconduct, the employee is ineligible to receive
recognition under this part.
(d) Policy. CTMS policy implementing this section addresses:
(1) Eligibility criteria;
(2) Requirements for documenting the reason and basis for
recognition provided to a DHS-CS employee;
(3) Appropriate levels of review and approval for providing
recognition;
(4) Any limitations on the total number, frequency, or amount of
recognition a DHS-CS employee may receive within any specific time
period;
(5) Any service agreement requirements; and
(6) Processes for evaluating the effectiveness of recognition in
supporting the purpose of CTMS described in Sec. 158.101, the purpose
of the DHS-CS described in Sec. 158.202, and the operationalization of
the compensation strategy described in Sec. 158.601.
(e) Advisory appointees. Recognition under this part for a DHS-CS
advisory appointee is subject to additional requirements and
restrictions in subpart J of this part.
Sec. 158.631 Recognition adjustments.
(a) Under this section and Sec. 158.630, the Department may
provide a recognition adjustment to a DHS-CS employee for the reasons
and bases stated in Sec. 158.630(a). A recognition adjustment is an
adjustment to the DHS-CS employee's salary provided under a salary
structure described in Sec. 158.611. A recognition adjustment does not
alter any local cybersecurity talent market supplement for that
employee.
(b) No DHS-CS employee may receive a recognition adjustment that
would cause the employee's salary to exceed the salary range maximum
described in Sec. 158.613(d) or the applicable salary limitation
assigned to the subrange of a salary structure as described in Sec.
158.611(d) that contains the employee's salary. A DHS-CS employee may
not receive a recognition adjustment that would cause the employee's
salary amount to be in the extended range, described in Sec.
158.613(c), unless the Secretary or designee invokes the extended range
for that employee under Sec. 158.613(c)(1).
(c) A recognition adjustment under this section is not a promotion
for any purpose under Title 5 U.S.C. or 5 CFR.
(d) A recognition adjustment under this section for a DHS-CS
advisory appointee is subject to additional requirements and
restrictions in subpart J of this part.
Sec. 158.632 Recognition payments.
(a) Under this section and Sec. 158.630, and for the reasons and
bases stated in Sec. 158.630(a), the Department may provide a
recognition payment to a DHS-CS employee in an amount of up to 20
percent, or up to 50 percent with approval of the Secretary or
designee, of the receiving DHS-CS employee's
[[Page 47904]]
salary. The Department may require a service agreement of not less than
six months and not more than three years as part of providing a
recognition payment to a DHS-CS employee.
(b) Under this section and Sec. 158.630, and for the reasons and
bases stated in Sec. 158.630(b) and as part of an offer of employment
in the DHS-CS, the Department may offer a recognition payment to an
individual selected for employment in the DHS-CS in an amount of up to
20 percent of the receiving individual's initial salary in the DHS-CS.
The Department requires a service agreement of not less than six months
and not more than three years as part of providing, upon appointment, a
recognition payment to an individual selected for employment in the
DHS-CS.
(c) The Department may provide a recognition payment as a lump sum
payment, an installment payment, or a recurring payment.
(d) The Department may provide a recognition payment under this
section to a former DHS-CS employee or to the legal heirs or estate of
a former DHS-CS employee in accordance with 5 U.S.C. 4505.
(e) Acceptance of a recognition payment constitutes agreement for
Federal Government use of any idea, method, device, or similar that is
the basis of the payment.
(f) A recognition payment under this section is subject to and may
be limited by the aggregate compensation limit described in Sec.
158.604.
(g) A recognition payment is not salary under this part and is not
basic pay for any purpose under 5 U.S.C. or 5 CFR.
(h) A recognition payment under this section is based on the
following types of awards and incentives provided under 5 U.S.C.:
(1) Cash awards under 5 U.S.C. 4502;
(2) Agency awards under 5 U.S.C. 4503;
(3) Performance-based cash awards under 5 U.S.C. 4505a and 5384;
(4) Presidential rank awards under 5 U.S.C. 4507 and 4507a; and
(5) Recruitment, relocation, and retention incentives 5 U.S.C. 5753
and 5754.
(i) A recognition payment under this section is in lieu of the
types of awards and incentives provided under 5 U.S.C. listed in
paragraph (h) of this section, and a DHS-CS employee is ineligible to
receive any such awards or incentives.
(j) An individual selected for employment in the DHS-CS is
ineligible to receive, as part of the offer of employment, any other
offer of a monetary award or incentive, a payment in addition to
salary, or other monetary recognition from the Department except as
provided in this section and Sec. 158.630. An individual appointed to
an advisory appointment is also ineligible to receive, as part of an
offer of employment in the DHS-CS, any offer of recognition under this
section.
(k) A recognition payment under this section for a DHS-CS advisory
appointee is subject to additional requirements and restrictions in
subpart J of this part.
Sec. 158.633 Recognition time-off.
(a) Under this section and Sec. 158.630, and for the reasons and
bases stated in Sec. 158.630(a), the Department may provide
recognition time-off to a DHS-CS employee for use within a designated
timeframe not to exceed 26 work periods, as defined in Sec.
158.705(c). Recognition time-off is time-off from duty without charge
to leave or loss of compensation.
(b) Under this section and Sec. 158.630, and for the reasons and
bases stated in Sec. 158.630(b) and as part of an offer of employment
in the DHS-CS, the Department may offer up to 40 hours of recognition
time-off to an individual selected for employment in the DHS-CS for use
within a designated timeframe not to exceed 26 work periods, as defined
in Sec. 158.705(b). The Department may require a service agreement as
part of providing, upon appointment, recognition time-off to an
individual selected for employment in the DHS-CS.
(c) All recognition time-off provided, and the use of such time-
off, must be recorded in a timekeeping system for purposes of salary
administration and leave administration under this part.
(d) Recognition time-off provided under this section may not, under
any circumstances, be converted to a cash payment to the receiving DHS-
CS employee or any other type of time-off or leave.
(e) Recognition time-off under this section is based on time-off
awards provided under the provisions of 5 U.S.C. 4502(e).
(f) Recognition time-off under this section is in lieu of the time-
off awards provided under 5 U.S.C. 4502(e), and a DHS-CS employee is
ineligible to receive any such awards.
(g) An individual selected for employment in the DHS-CS is
ineligible to receive, as part of the offer of employment, any other
offer of time-off or time-off award from the Department except as
provided in this section and Sec. Sec. 158.630 and 158.651. An
individual appointed to an advisory appointment is also ineligible to
receive, as part of an offer of employment in the DHS-CS, any offer of
recognition under this section.
(h) A recognition time-off provided under this section to a DHS-CS
advisory appointee is subject to additional requirements and
restrictions in subpart J of this part.
Sec. 158.634 Honorary recognition.
(a) Under this section and Sec. 158.630, the Department may
establish one or more honorary recognition programs to provide honorary
recognition to DHS-CS employees for the reasons and bases stated in
Sec. 158.630(a). The Department may incur necessary expenses for
honorary recognition under an honorary recognition program established
under this section.
(b) Honorary recognition under this section is based on honorary
recognition provided under the provisions of 5 U.S.C. 4503, and a DHS-
CS employee may be eligible to receive honorary recognition under 5
U.S.C. 4503 and 5 CFR part 451 in addition to any honorary recognition
under this section.
(c) The Department may provide honorary recognition under this
section to a former DHS-CS employee or to the legal heirs or estate of
a former DHS-CS employee in accordance with 5 U.S.C. 4505.
(d) Honorary recognition under this section for a DHS-CS advisory
appointee is subject to additional requirements in subpart J of this
part.
Other Special Payments
Sec. 158.640 Professional Development and Training.
(a) In alignment with the compensation strategy described in Sec.
158.601 and the career development program described in Sec. 158.803,
the Department may provide professional development and training
opportunities, payments, and reimbursements for DHS-CS employees.
(b) CTMS policy implementing this section addresses:
(1) Eligibility criteria;
(2) Requirements for documenting the reason and basis for
professional development and training opportunities, payments, and
reimbursements provided to a DHS-CS employee;
(3) Appropriate levels of review and approval for providing
professional development and training opportunities, payments, and
reimbursements;
(4) Any limitations on the total number or frequency of
professional development and training opportunities, and any
limitations on the total number, frequency, or amount of professional
development and training payments and reimbursements a DHS-CS employee
[[Page 47905]]
may receive, within any specific time period;
(5) Any service agreement requirements;
(6) Requirements for communicating to DHS-CS employees and their
supervisors about professional development and training opportunities;
and
(7) Processes for evaluating the effectiveness of the professional
development and training in supporting the purpose of CTMS described in
Sec. 158.101, the purpose of the DHS-CS described in Sec. 158.202,
and the operationalization of the compensation strategy described in
Sec. 158.601.
(c) Any payment or reimbursement under this section is excluded
from the aggregate compensation limit described in Sec. 158.604.
(d) Any payment or reimbursement under this section is not salary
under this part and is not basic pay for any purpose under 5 U.S.C. or
5 CFR.
(e) Professional development and training under this section is
based on the following training and professional development
opportunities, payments, and reimbursements provided under 5 U.S.C.:
(1) Sabbaticals under 5 U.S.C. 3396;
(2) Academic degree training under 5 U.S.C. 4107;
(3) Expenses of training under 5 U.S.C. 4109;
(4) Expenses of attendance at meetings under 5 U.S.C. 4110; and
(5) Payment of expenses to obtain professional credentials under 5
U.S.C. 5757.
(f) In addition to any professional development and training under
this section, a DHS-CS employee may be eligible to receive the training
and professional development opportunities, payments, and
reimbursements provided under 5 U.S.C. listed in paragraph (e) of this
section.
(g) Professional development and training under this section for a
DHS-CS advisory appointee is subject to additional requirements and
restrictions in subpart J of this part.
Sec. 158.641 Student loan repayments.
(a) In alignment with the compensation strategy described in Sec.
158.601, the Department may provide a student loan repayment to a DHS-
CS employee under this section and in accordance with 5 U.S.C. 5379 and
5 CFR part 537, except that:
(1) The maximum payment amounts under 5 U.S.C. 5379 and 5 CFR part
537 do not apply, and the Department may provide and a DHS-CS employee
may receive a student loan repayment under this section so long as such
repayment does not exceed $16,500 per employee per calendar year and a
total of $90,000 per employee;
(2) The minimum service period length of three years under 5 U.S.C.
5379 and 5 CFR part 537 does not apply, and instead the length of a
minimum service period for a DHS-CS employee receiving a student loan
repayment under this section is determined under CTMS policy and based
on the amount of the repayment received by the employee; and
(3) Eligibility criteria related to time-limited appointments under
5 U.S.C. 5379 and 5 CFR part 537 do not apply, and a DHS-CS employee in
a renewable appointment may receive a student loan payment under this
section.
(b) In alignment with eligibility criteria under 5 U.S.C. 5379 and
5 CFR part 537:
(1) If the Department determines a DHS-CS employee's performance is
unacceptable, as defined in 5 U.S.C. 4301(3), or the employee receives
an unacceptable rating of record under Sec. 158.804, or the Department
determines the employee has engaged in misconduct, the employee is
ineligible to receive a student loan repayment under this section.
(2) A DHS-CS advisory appointee is ineligible to receive a student
loan repayment under this section.
(c) CTMS policy implementing this section addresses:
(1) Eligibility criteria;
(2) Requirements for documenting the reason and basis for a student
loan repayment provided to a DHS-CS employee;
(3) Appropriate levels of review and approval for providing a
student loan repayment;
(4) Service agreement requirements, including minimum service
periods;
(5) Any additional limitations on student loan repayments; and
(6) Processes for evaluating the effectiveness of student loan
repayments in supporting the purpose of CTMS described in Sec.
158.101, the purpose of the DHS-CS described in Sec. 158.202, and the
operationalization of the compensation strategy described in Sec.
158.601.
(d) Any student loan repayment provided under this section is
excluded from the aggregate compensation limit described in Sec.
158.604.
(e) Any student loan repayment provided under this section is not
salary under this part and is not basic pay for any purpose under 5
U.S.C. or 5 CFR.
Sec. 158.642 Special working conditions payment program.
(a) In alignment with the compensation strategy described in Sec.
158.601, the Department may establish a program to provide payments to
DHS-CS employees to address special working conditions that are
otherwise unaccounted for or the Department determines are accounted
for insufficiently in DHS-CS employees' other types of additional
compensation and salary.
(b) Special working conditions include circumstances in which a
supervisor or other appropriate official requires a DHS-CS employee to
perform DHS-CS cybersecurity work that involves, as determined by the
Department:
(1) Unusual physical or mental hardship;
(2) Performing work at atypical locations, at unexpected times, or
for an uncommon duration of time exceeding the expectation described in
Sec. 158.601(c) about working unusual hours and extended hours; or
(3) A combination of the conditions described in paragraphs (b)(1)
and (2) of this section.
(c) A payment for special working conditions is a payment of up to
25 percent of the receiving DHS-CS employee's salary as computed for a
work period, defined in Sec. 158.705(b), or a series of work periods.
(d) The Department determines whether to establish, adjust, or
cancel a program under this section based on information from:
(1) The work scheduling system described in Sec. 158.705; and
(2) Strategic talent planning described in Sec. 158.401(c),
including information about current compensation practices of other
cybersecurity employers analyzed under the talent market analysis
described in Sec. 158.403.
(e) The Department determines eligibility for a payment for special
working conditions under this section and CTMS policy implementing this
section.
(1) A DHS-CS employee who receives a payment for special working
conditions under a program established under this section is not
automatically eligible or entitled to receive any additional such
payments.
(2) A DHS-CS employee receiving a salary equal to or greater than
EX-IV is ineligible to receive a payment under this section.
(3) A DHS-CS advisory appointee is ineligible to receive a payment
for special working conditions under this section.
(f) CTMS policy implementing this section addresses:
(1) Eligibility criteria;
(2) Requirements for documenting the reason and basis for payments
for
[[Page 47906]]
special working conditions provided to a DHS-CS employee;
(3) Appropriate levels of review and approval for providing
payments for special working conditions;
(4) Any limitations on payments for special working conditions;
(5) Requirements for determining whether a payment for special
working conditions is a lump sum payment, paid in installments, or a
recurring payment; and
(6) Processes for evaluating the effectiveness of any special
working conditions payment program in supporting the purpose of CTMS
described in Sec. 158.101, the purpose of the DHS-CS described in
Sec. 158.202, and the operationalization of the compensation strategy
described in Sec. 158.601.
(g) Any payment under this section is subject to and may be limited
by the aggregate compensation limit described in Sec. 158.604.
(h) Any payment under this section is not salary under this part
and is not basic pay for any purpose under Title 5 U.S.C. or 5 CFR.
(i) A payment for special working conditions under this section is
based on the following types of payments provided under 5 U.S.C.:
(1) Night, standby and hazardous duty differential under 5 U.S.C.
5545;
(2) Pay for Sunday and holiday work under 5 U.S.C. 5546; and
(3) Extended assignment incentives under 5 U.S.C. 5757.
(j) A payment for special working conditions under this section is
in lieu of the types of payment provided under 5 U.S.C. listed in
paragraph (g) of this section, and a DHS-CS employee is ineligible to
receive any such payments under 5 U.S.C.
Sec. 158.643 Allowance in nonforeign areas.
(a) A DHS-CS employee is eligible for and may receive an allowance
under 5 U.S.C. 5941 and implementing regulations in 5 CFR part 591,
subpart B, on the same basis and to the same extent as if the employee
is an employee covered by those authorities.
(b) The Department provides an allowance described in paragraph (a)
of this section to any DHS-CS employee who is eligible, as described in
paragraph (a), for such allowance.
(c) Any allowance provided under this section is excluded from the
aggregate compensation limit described in Sec. 158.604.
(d) Any allowance provided under this section is not salary under
this part and is not basic pay for any purpose under 5 U.S.C. or 5 CFR.
(e) Any allowance under this section for a DHS-CS advisory
appointee is subject to additional requirements and restrictions in
subpart J of this part.
Other Compensation Provided in Accordance With Relevant Provisions of
Other Laws
Sec. 158.650 Holidays.
In alignment with salary administration under Sec. 158.622 and
work scheduling under Sec. 158.705, the Department provides holidays
to a DHS-CS employee under this section and in accordance with 5 U.S.C.
6103-6104 and 5 CFR part 610, subpart B.
Sec. 158.651 Leave.
(a) Leave. In alignment with salary administration under Sec.
158.622 and work scheduling under Sec. 158.705, the Department
provides leave to a DHS-CS employee under this section and in
accordance with 5 U.S.C. Chapter 63 and 5 CFR part 630, including:
(1) Annual leave, as described in 5 U.S.C. Chapter 63, Subchapter
I;
(2) Sick leave, as described in 5 U.S.C. Chapter 63, Subchapter I;
(3) Other paid leave, as described in 5 U.S.C. Chapter 63,
Subchapter II;
(4) Voluntary transfers of leave, as described in 5 U.S.C. Chapter
63, Subchapter III;
(5) Voluntary leave bank programs, as described in 5 U.S.C. Chapter
63, Subchapter IV;
(6) Family and medical leave, as described in 5 U.S.C. Chapter 63,
Subchapter V; and
(7) Leave transfer in disasters and emergencies, as described in 5
U.S.C. Chapter 63, Subchapter VI.
(b) Annual leave accrual. A DHS-CS employee's annual leave accrual
amount is determined under 5 U.S.C. 6303.
(c) Annual leave accumulation. A DHS-CS employee's annual leave
accumulation amount is determined under 5 U.S.C. 6304, except that the
Department may apply 5 U.S.C. 6304(f)(2)(A) to DHS-CS employees
receiving a salary under this part that exceeds 120 percent of the
minimum annual rate of basic pay for GS-15 under the General Schedule.
(d) Leave credits. The annual leave and sick leave accrued to the
credit of a current Federal employee who is appointed to a qualified
position under this part without a break in service of more than three
calendar days is transferred to the employee's credit in accordance
with 5 U.S.C. 6308.
(e) Annual leave balance upon leaving the DHS-CS. When a DHS-CS
employee moves to a position outside of the DHS-CS, any leave balance
for the employee is addressed in accordance with 5 CFR 630.209 and
630.501.
(f) Leave administration. The Department administers leave under
this section as described in this section and in Sec. 158.655, and in
accordance with the relevant provisions of other laws referenced in
this section and CTMS policy.
Sec. 158.652 Compensatory time-off for religious observance.
In alignment with salary administration under Sec. 158.622 of this
part and work scheduling under Sec. 158.705, the Department provides
compensatory time-off for religious observance to a DHS-CS employee
under this section and in accordance with 5 U.S.C. 5550a and 5 CFR 550,
subpart J.
Sec. 158.653 Other benefits.
(a) In alignment with salary administration under Sec. 158.622,
leave administration under Sec. 158.651, and work scheduling under
Sec. 158.705, the Department provides benefits, including retirement,
health benefits, and insurance programs, to a DHS-CS employee under
this section and in accordance with 5 U.S.C. Chapters 81-90 and 5 CFR
parts 831 and 838-894.
(b) The Department administers the benefits of an annuitant
appointed to a qualified position in accordance with 5 U.S.C. 8344, 5
U.S.C. 8468, 5 CFR 553.203, or 5 CFR part 837, as applicable.
(c) The Department provides a transportation subsidy to a DHS-CS
employee under this section and in accordance with 5 U.S.C. 7905.
Sec. 158.654 Other payments.
(a) The Department provides the following other types of payments
to a DHS-CS employee under this section and in accordance with the
relevant provisions of law referenced in this section:
(1) Severance pay under this section, and the Department provides
any severance pay in accordance with 5 U.S.C. 5595 and 5 CFR part 550,
subpart G, except that separation from the DHS-CS because of a lapse or
nonrenewal of a DHS-CS employee's appointment under this part or
because of a DHS-CS employee's refusal to accepted a directed
subsequent assignment, described in Sec. 158.708, is not an
involuntary separation, and the former DHS-CS employee is not entitled
to severance pay.
(2) Lump-sum leave payouts under this section, and the Department
provides any lump-sum leave payouts in accordance with 5 U.S.C. 5551
and 5552 and 5 CFR part 550, subpart L.
(3) Voluntary separation incentive payments under this section, and
the
[[Page 47907]]
Department provides any such payments in accordance with 5 U.S.C. 3521-
3525 and 5 CFR part 576.
(4) Reservist differential under this section, and the Department
provides any such differential in accordance with 5 U.S.C. 5538.
(5) Quarters allowances under this section, and the Department
provides any such allowances in accordance with 5 U.S.C. Chapter 59,
Subchapter II, the Department of State Standardized Regulations and any
implementing supplements issued by the Department of State, and 5 CFR
part 591, subpart C.
(6) Overseas differentials and allowances under this section, and
the Department provides any such differentials and allowances in
accordance with 5 U.S.C. Chapter 59, Subchapter III, the Department of
State Standardized Regulations and any implementing supplements issued
by the Department of State, and 5 CFR part 591, subpart C.
(7) Remote worksite allowances, foreign currency allowances, and
hostile fire pay under this section, and the Department provides any
such allowances and pay in accordance with 5 U.S.C. Chapter 59,
Subchapter IV.
(8) Other similar payments described in CTMS policy as being
authorized under this part and provided in accordance with relevant
provisions of other laws.
(b) A payment for any quarter allowances, overseas differentials
and allowances, and remote worksite allowances, foreign currency
allowances, and hostile fire pay under paragraphs (a)(5) through (7) of
this section is subject to and may be limited by the aggregate
compensation limit described in Sec. 158.604. A payment for any
severance pay, lump-sum leave payout, voluntary separation inventive
payment, and reservist differential under paragraphs (a)(1) through (4)
of this section is not subject to the aggregate compensation limit
described in Sec. 158.604. A payment under paragraph (a)(8) of this
section may be subject to and limited by the aggregate compensation
limit described in Sec. 158.604, as described in CTMS policy.
(c) Any payment under this section is not salary under this part
and is not basic pay for any purpose under Title 5 U.S.C. or 5 CFR.
Sec. 158.655 Administering compensation in accordance with relevant
provisions of other laws.
(a) For purposes of administering compensation authorized under
Sec. Sec. 158.650 through 158.654 in accordance with relevant
provisions of other laws:
(1) The Department may convert a DHS-CS employee's salary into an
hourly rate, biweekly rate, or other rate, and administer compensation
based on consideration of the DHS-CS employee's work schedule under the
work scheduling system described in Sec. 158.705;
(2) A DHS-CS employee's hours of work and related computations are
determined under the relevant provisions of law referenced in
Sec. Sec. 158.650 through 158.654 and CTMS policy implementing this
section;
(3) A DHS-CS employee on a part-time schedule described in Sec.
158.705 is treated as if the employee is serving ``part-time career
employment'' defined in 5 CFR 340.101; and
(4) A DHS-CS employee on a contingent schedule described in Sec.
158.705 is treated as if the employee is serving ``intermittent
employment'' defined in 5 CFR 340.401.
(b) If, in administering compensation under Sec. Sec. 158.650
through 158.654, the Department determines it is necessary to clarify
the relationship between those sections and the relevant provisions of
law referenced in those sections and any other relevant provisions of
other laws, the Department will address the issue in new or revised
CTMS policy.
Subpart G--Deploying Talent
Sec. 158.701 Deployment program.
(a) Deployment program. The Secretary or designee establishes and
administers a deployment program to:
(1) Guide when the Department uses CTMS to recruit and retain
individuals possessing CTMS qualifications; and
(2) Operationalize aspects of the work valuation system, the talent
acquisition system and the compensation system, described in Sec. Sec.
158.404, 158.501, and 158.602 respectively.
(b) Under the deployment program, the Department:
(1) Designates qualified positions as described in Sec. 158.702;
(2) Designates and staffs assignments as described in Sec.
158.703;
(3) Determines and documents a DHS-CS employee's official worksite
as described in Sec. 158.704;
(4) Administers a work scheduling system as described in Sec.
158.705; and
(5) Performs necessary recordkeeping as described in Sec. 158.706.
Sec. 158.702 Designating qualified positions.
(a) When a DHS organization requires individuals possessing CTMS
qualifications to ensure the most effective execution of the DHS
cybersecurity mission and the recruitment and retention of such
individuals would likely be enhanced by using CTMS, the Secretary or
designee designates qualified positions.
(b) CTMS policy implementing this section addresses:
(1) Procedures for DHS organizations to request using CTMS;
(2) Requirements for DHS organization using CTMS; and
(3) Information necessary to designate qualified positions.
(c) Designating qualified positions may result in:
(1) Establishing one or more qualified positions under the talent
acquisition system, described in Sec. 158.501; or
(2) Designating and staffing one or more assignments as described
in Sec. 158.703; or
(3) Both results described in paragraphs (c)(1) and (2) of this
section.
(d) Designating qualified positions involves budget and fiscal
considerations related to establishing one or more qualified positions
under the talent acquisition system, described in Sec. 158.501.
Sec. 158.703 Designating and staffing assignments.
(a) Designating assignments. The Department designates assignments
by defining combinations of CTMS qualifications and DHS-CS
cybersecurity work associable with qualified positions. CTMS policy
implementing this section addresses procedures for DHS organizations to
designate assignments, including as a result of designating qualified
positions as described in Sec. 158.702.
(b) Staffing assignments. The Department staffs assignments by:
(1) Matching assignments with DHS-CS employees as described in
paragraph (d) of this section;
(2) Matching assignments with newly appointed individuals as
described in paragraph (c) of this section; or
(3) Seeking to recruit individuals and establish new qualified
positions under the talent acquisition system described in Sec.
158.501 and then matching assignments with newly appointed individuals
as described in paragraph (c) of this section.
(c) Initial assignment. Upon appointment of an individual to a
qualified position, the Department matches the individual with an
assignment based on the alignment of the individual's CTMS
qualifications, determined under the assessment program described in
Sec. 158.520, to the CTMS qualifications of an assignment. In matching
an individual with an initial assignment, the Department may also
consider:
(1) Input from the individual;
[[Page 47908]]
(2) Input from DHS organizations;
(3) Mission-related requirements; and
(4) Strategic talent priorities.
(d) Subsequent assignments. The Department matches DHS-CS employees
with assignments subsequent to employees' initial assignments, as
necessary.
(1) The Department matches a DHS-CS employee with a subsequent
assignment based on the alignment of the employee's CTMS qualifications
with the CTMS qualifications of an assignment. In matching a DHS-CS
employee with a subsequent assignment, the Department may also
consider:
(i) Input from the employee;
(ii) Input from DHS organizations, especially the primary DHS
organization of the employee's current assignment;
(iii) Information about the employee from the performance
management program described in Sec. 158.802 and the career
development program described in Sec. 158.803;
(iv) Mission-related requirements; and
(v) Strategic talent priorities.
(2) A DHS-CS employee may have multiple assignments throughout the
employee's service in a qualified position, but may only have one
assignment at a time. A DHS-CS employee's subsequent assignments may
have assignment information, described in Sec. 158.706(e), that is
different than the assignment information of the employee's initial
assignment, including primary DHS organization.
(3) In alignment with the career development program described in
Sec. 158.803 and based on information from development reviews
described in Sec. 158.806 the Department communicates with DHS-CS
employees on an ongoing basis about subsequent assignment
opportunities;
Sec. 158.704 Official worksite.
(a) Definition. A DHS-CS employee's official worksite is the
geographic location where the employee regularly performs DHS-CS
cybersecurity work or where the employee's DHS-CS cybersecurity work is
based, as determined and documented by the Department under this
section.
(b) Determination. The Department determines a DHS-CS employee's
official work site for purposes of administering compensation under
this part, especially eligibility for any compensation described in
Sec. Sec. 158.612 and 158.643. The Department's determination of a
DHS-CS employee's official worksite includes consideration of any of
the following for the employee: Telework, variation in location where
the employee performs DHS-CS cybersecurity work, and temporary
situations affecting the location where the employee performs DHS-CS
cybersecurity work.
(c) Documentation. Upon appointment of an individual to a qualified
position, the Department documents the individual's official worksite
as part of documenting the employee's appointment to a qualified
position and the employee's assignment, as described in Sec. 158.706.
The Department updates documentation of a DHS-CS employee's official
worksite, if the geographic location where the DHS-CS employee
regularly performs DHS-CS cybersecurity work changes and such change
impacts the determination of the DHS-CS employee's official worksite
under paragraph (a) of this section and such change is expected to
last, or does last, for six months or more.
Sec. 158.705 Work scheduling.
(a) Work scheduling system. The Secretary or designee establishes
and administers a work scheduling system for DHS-CS employees to
ensure:
(1) Agility for the Department in scheduling DHS-CS cybersecurity
work to execute the DHS cybersecurity mission;
(2) Availability of DHS-CS employees to perform the DHS-CS
cybersecurity work of their assignments;
(3) Clear expectations for DHS-CS employees about when they are
expected to perform DHS-CS cybersecurity work associated with their
assignments;
(4) Flexibility for DHS-CS employees in scheduling and performing
DHS-CS cybersecurity work associated with their assignments; and
(5) Recording of, accounting for, and monitoring of hours worked by
DHS-CS employees.
(b) Definitions. For purposes of this section--
(1) Work period means a two-week period of 14 consecutive days that
begins on a Sunday and ends on a Saturday, and is the equivalent of a
biweekly pay period defined in 5 U.S.C. 5504 and 5 CFR part 550,
subpart F.
(2) Minimum hours of work means the minimum number of hours that a
DHS-CS employee is required to work, or account for with time-off,
during a work period, and is the equivalent to the term basic work
requirement defined in 5 U.S.C. 6121.
(3) Time-off means leave under Sec. 158.651, time-off under Sec.
158.652, and recognition time-off under Sec. 158.633, or other time-
off of duty available for DHS-CS employees.
(4) Full-time schedule means 80 hours per work period.
(5) Part-time schedule means a specified number of hours less than
80 hours per work period. When DHS-CS cybersecurity work associated
with a DHS-CS employee's assignment regularly requires the DHS-CS
employee to exceed that employee's specified number of hours per work
period, the Department considers, with input from the employee and the
employee's supervisor, whether to change the employee's work schedule
from part-time to full-time to ensure appropriate compensation under
this part, including accrual of leave under Sec. 158.651 and the DHS-
CS employee's share of health benefits premiums provided under Sec.
158.653.
(6) Contingent schedule means an irregular number of hours up to 80
hours per work period. A contingent schedule is appropriate only when
the DHS-CS cybersecurity work associated with a DHS-CS employee's
assignment is sporadic and cannot be regularly scheduled in advance.
When DHS-CS cybersecurity work associated with a DHS-CS employee's
assignment is able to be scheduled in advance on a regular basis, the
Department changes the employee's work schedule from contingent to
part-time or full-time, as appropriate, to ensure appropriate
compensation under this part, including accrual of leave under Sec.
158.651 and the DHS-CS employee's share of health benefits premiums
provided under Sec. 158.653.
(c) Employee work schedules. (1) A DHS-CS employee's work schedule,
and any minimum hours of work associated with the employee's schedule,
is determined at the time of appointment and recorded as part of
documenting the employee's appointment to a qualified position under
Sec. 158.706. A DHS-CS employee on a contingent schedule does not have
a minimum number of hours of work but has a maximum number of total
hours for the employee's appointment that is determined at the time of
appointment and recorded as part of documenting the employee's
appointment to a qualified position under Sec. 158.706.
(2) A DHS-CS employee's work schedule, and any minimum hours of
work, may change during the employee's service in a qualified position
and the Department records any such changes in the documentation
associated with the employee's qualified position under Sec. 158.706.
(d) Work schedule requirements. (1) DHS-CS employees are expected
to perform DHS-CS cybersecurity work associated with their assignments
to
[[Page 47909]]
execute the DHS cybersecurity mission, especially in response to
exigent circumstances and emergencies, including cybersecurity
incidents defined in 6 U.S.C. 659, without entitlement to more
compensation than the employee's salary described in Sec. 158.603.
Hours worked by a DHS-CS employee that exceed the employee's minimum
hours of work do not affect the employee's salary or result in any
automatic compensation, including a type of additional compensation.
(2) A DHS-CS employee on a full-time schedule is expected to work
at least 80 hours per work period.
(3) A DHS-CS employee on a part-time schedule is expected to work
at least the employee's specified number of hours of work per work
period.
(4) A DHS-CS employee on a contingent schedule is expected to work
as necessary to perform the DHS-CS cybersecurity work associated with
the employee's assignment, not to exceed the maximum number of total
hours for the employee's appointment.
(5) DHS-CS employees must report hours worked by the employee. The
Department monitors such hours for purposes of managing the DHS-CS,
including considering any changes to DHS-CS employees' schedules, and
administering compensation, including assisting in consideration of any
additional compensation for DHS-CS employees under Sec. 158.642.
(6) A DHS-CS employee on a full-time schedule or a part-time
schedule must account for minimum hours of work by the conclusion of
the last day of the work period. If the hours worked by the employee
are less than the employee's minimum hours of work, the employee must
use time-off approved by the employee's supervisor, or must be placed
in an appropriate non-pay status for the purposes described in
paragraphs (a)(1) and (2) of this section, to account for the
difference between hours actually worked by the employee and the
employee's minimum hours of work.
(7) A DHS-CS employee on a full-time schedule or a part-time
schedule, in coordination with the employee's supervisor, may adjust
when work hours are completed in a given work period, to ensure time-
off for religious observance, while also completing minimum hours of
work. A DHS-CS employee on a contingent schedule, in coordination with
the employee's supervisor, may adjust when work hours are completed to
ensure time-off for religious observance.
(e) Hours worked and compensation. The Department uses the work
scheduling system described in this section in administering
compensation under this part, especially salary administration
described in Sec. 158.622 and the compensation described in Sec. Sec.
158.642, 158.650, 158.651, and 158.652. In alignment with the
compensation strategy, described in Sec. 158.601, the work scheduling
system:
(1) Acknowledges the unpredictable nature of cybersecurity work and
the expectation described in Sec. 158.601(c) about working unusual
hours and extended hours as needed; and
(2) Reflects an understanding of the cybersecurity talent market,
especially current work expectations and arrangements.
(f) Policy. CTMS policy implementing this section addresses:
(1) Procedures for determining, recording, and updating as
necessary, DHS-CS employees' work schedules;
(2) Procedures for selecting and communicating anticipated work
hours in advance and communicating variances from those work hours;
(3) Requirements regarding reporting and monitoring hours worked;
(4) Procedures for accounting for minimum hours of work; and
(5) Other work scheduling requirements for DHS-CS employees,
including DHS-CS employees supporting specific DHS organizations. Such
requirements may include designated days, hours, core hours, or limits
on the number of work hours per day;
Sec. 158.706 Recordkeeping.
(a) Generally. The Department documents an individual's appointment
to a qualified position and creates records of a DHS-CS employee's
employment in the DHS-CS in compliance with 5 U.S.C. 2951 and 5 CFR
subchapter A, part 9, and subchapter B, parts 293 and 297.
(b) Documenting a qualified position. The Department documents a
qualified position established under this part by documenting an
individual's appointment to a qualified position. Such documentation
includes a description of the individual's:
(1) CTMS qualifications and the DHS-CS cybersecurity work that can
be performed through application of those qualifications;
(2) Applicable work and career structures established under the
work valuation system described in Sec. 158.404;
(3) Salary under the compensation system described in Sec.
158.602;
(3) Assignment information described in paragraph (e) of this
section;
(4) Official worksite described in Sec. 158.704; and
(5) Work schedule described in Sec. 158.705.
(c) Updating qualified position documentation. The Department
updates the documentation associated with a DHS-CS employee's qualified
position, described in paragraph (a) of this section, to reflect
changes affecting the employee's qualified position, including any
changes to the description of information listed in paragraph (a), such
as enhancements to the employee's CTMS qualifications. Except as
necessary for purposes of recordkeeping under this section, any update
to the documentation associated with a DHS-CS employee's qualified
position is not a promotion, transfer, or reassignment for any other
purpose under 5 U.S.C. or 5 CFR.
(d) Documenting an assignment. The Department documents a DHS-CS
employee's initial assignment as part of documenting the employee's
qualified position under this section. The Department updates the
documentation associated with a DHS-CS employee's qualified position
for each of the employee's subsequent assignments described in Sec.
158.703.
(e) Assignment information. Documentation of each assignment under
this section includes the following operational information:
(1) Statement of cybersecurity work activities;
(2) Timeframe, such as anticipated duration;
(3) Primary DHS organization;
(4) Personnel security requirements;
(5) Location, such as official worksite determined under Sec.
158.704;
(6) Information related to work scheduling under Sec. 158.705; and
(7) Information related to the performance management program,
including information relevant to appraisal reviews, mission impact
reviews, and development reviews, described in subpart H of this part.
(f) Integrating with existing processes. For purposes of
recordkeeping for DHS-CS employees, including documenting positions and
assignments under this section, the Department uses existing Federal
personnel recordkeeping processes, standards, requirements, and systems
of record. CTMS policy implementing this section addresses integration
of the approach to talent management under this part, including
definitions used in this part, with existing Federal personnel
recordkeeping processes, standards, requirements, and systems of
record, as necessary.
[[Page 47910]]
Sec. 158.707 Details and opportunities outside DHS.
(a) DHS-CS employees serving in renewable appointments or
continuing appointments may be detailed to:
(1) A position in the excepted service in another agency under 31
U.S.C. 1535;
(2) A position in the SES in another agency under 5 CFR 317.903;
(3) A position in the competitive service in another agency under
31 U.S.C. 1535 and 5 CFR 300.301, if approved by the Director of the
Office of Personnel Management;
(4) Certain offices of the White House under 3 U.S.C.112;
(5) The Congress under 2 U.S.C. 4301(f);
(6) An international organization under 5 U.S.C. 3343; or
(7) Another detail opportunity under other provisions of applicable
law.
(b) Individuals from outside the DHS-CS may not be detailed to a
qualified position.
(c) DHS-CS employees serving in continuing appointments may be
assigned to eligible non-Federal organizations under the
Intergovernmental Personnel Act in accordance with 5 U.S.C. 3371-3375
and 5 CFR part 334.
Sec. 158.708 Directed assignments.
(a) Occasionally, the Department may direct a subsequent assignment
of a DHS-CS employee, and such a directed subsequent assignment may
require a change in the employee's official worksite, determined under
Sec. 158.704. For such directed subsequent assignments of a DHS-CS
employee, the Department pays or reimburses expenses or allowances
under and in accordance with the Federal Travel Regulations at 41 CFR
chapters 301 and 302, and for such directed assignments that are not
temporary, DHS provides notice to and consultation with the employee as
described in this paragraph.
(b) Directed subsequent assignments expected to last less than six
months are considered temporary, and for purposes under the Federal
Travel Regulations at 41 CFR chapters 301 and 302, are temporary duty.
(c) For such directed subsequent assignments expected to last six
months or more and with an official worksite in a DHS-CS employee's
current commuting area, defined in 5 CFR 550.703, the Department
provides the employee written notice at least 30 calendar days before
the effective date of the subsequent assignment. This notice
requirement may be waived only when the employee consents in writing.
(d) For such directed subsequent assignments expected to last six
months or more and with an official worksite outside of a DHS-CS
employee's current commuting area, defined in 5 CFR 550.703, DHS
consults with the employee on the reasons for, and the employee's
preferences regarding, the proposed change in assignment. Following
such consultation, the Department provides the employee written notice
at least 90 calendar days before the effective date of the assignment.
This notice requirement may be waived only when the employee consents
in writing.
Sec. 158.709 Exemption from other laws regarding deployment.
The provisions of laws, among other similar laws, listed in
Sec. Sec. 158.405, 158.502, and 158.605 do not apply under CTMS, to
the DHS-CS, or to talent management involving the individuals described
in Sec. 158.103.
Subpart H--Developing Talent
Authority: 5 U.S.C. Chapters 41 and 43; 5 CFR parts 410 and
430.
Sec. 158.801 Definitions.
As used in this subpart:
Appraisal has the same meaning as that term in 5 CFR 430.203.
Appraisal period has the same meaning as that term in 5 CFR
430.203.
Appraisal program has the same meaning as that term in 5 CFR
430.203.
Appraisal system and performance appraisal system have the same
meanings as those terms in 5 CFR 430.203.
Mission impact has the same meaning as defined in Sec. 158.104.
Performance has the same meaning as that term in 5 CFR 430.203.
Performance rating has the same meaning as that term in 5 CFR
430.203.
Progress review has the same meaning as that term in 5 CFR 430.203.
Rating of record has the same meaning as that term in 5 CFR
430.203.
Sec. 158.802 Performance management program.
(a) In alignment with the DHS-CS's core values described in Sec.
158.305 and the compensation strategy described in Sec. 158.601, the
Secretary or designee establishes and administers a systematic
performance management program to:
(1) Establish and maintain individual accountability among DHS-CS
employees;
(2) Manage, recognize, and develop the performance of each DHS-CS
employee; and
(3) Improve effectiveness of DHS-CS employees in executing the DHS
cybersecurity mission.
(b) The performance management program comprises the following
ongoing reviews:
(1) Appraisal reviews described in Sec. 158.804;
(2) Mission impact reviews described in Sec. 158.805; and
(3) Development reviews described in Sec. 158.806.
(c) To complete appraisal reviews, mission impact reviews, and
development reviews for a DHS-CS employee, the Department may collect,
on a periodic or ongoing basis, information and input from:
(1) The DHS-CS employee;
(2) Other DHS-CS employees;
(3) The employee's supervisor; and
(4) Other appropriate officials.
Sec. 158.803 Career development program.
(a) Career development program. In alignment with the DHS-CS's core
values described in Sec. 158.305 and the compensation strategy
described in Sec. 158.601, the Secretary or designee establishes and
administers a career development program to:
(1) Guide the career progression of each DHS-CS employee;
(2) Ensure development of the collective expertise of DHS-CS
employees through continual learning; and
(3) Ensure continued alignment between the qualifications of DHS-CS
employees and CTMS qualifications.
(b) Career progression. Career progression in the DHS-CS is based
on enhancement of CTMS qualifications and salary progression resulting
from recognition adjustments under Sec. 158.631. Career progression in
the DHS-CS is not based on length of service in the DHS-CS or the
Federal Government. The Department guides the career progression of
DHS-CS employees using development strategies based on:
(1) Information from development reviews, described in Sec.
158.806;
(2) Mission-related requirements; and
(3) Strategic talent priorities.
(c) Commitment to continual learning. The Department establishes,
maintains, and communicates criteria for continual learning. Such
criteria include recommended and required learning activities,
including completion of specific courses of study, completion of
mission-related training defined in 5 CFR 410.101, performance of
certain DHS-CS cybersecurity work as part of assignments, and
participation in opportunities for professional development and
training described in Sec. 158.640. The Department aims to utilize all
available opportunities for DHS-CS employee development,
[[Page 47911]]
including opportunities under this part and under or based on
authorities in 5 U.S.C. and 5 CFR relating to continual learning,
professional development, and training, as appropriate.
(d) Verification of qualifications enhancements. The Department
verifies DHS-CS employees' enhancement of CTMS qualifications, which
may include review by the CTMB or assessment using standardized
instruments and procedures designed to measure the extent to which a
DHS-CS employee has enhanced the employee's qualifications.
Verification of enhancement to CTMS qualifications may require updating
the documentation associated with the employee's qualified position, as
described in Sec. 158.706.
Sec. 158.804 Appraisal reviews.
(a) Under 5 U.S.C. Chapter 43 and 5 CFR part 430, the Department
establishes an appraisal program to review and evaluate the performance
of DHS-CS employees to ensure DHS-CS employees' individual
accountability.
(b) The appraisal program for DHS-CS employees includes one or more
progress reviews, as defined in 5 CFR 430.203, and an appraisal of an
employee's performance that results in a rating of record, as defined
in 5 CFR 430.203.
(c) The Department addresses unacceptable performance, as defined
in 5 U.S.C. 4301(3), under the provisions of 5 CFR part 432 or part
752. The CTMB may assist with any decision, or action, or both, made
under the authority in this section and 5 CFR part 430 and 5 CFR part
432 or 752.
(d) If the Department determines a DHS-CS employee's performance is
unacceptable or the employee receives an unacceptable rating of record,
the employee is ineligible to receive recognition under Sec. Sec.
158.630 through 158.634 and the employee may be excluded from mission
impact reviews under Sec. 158.805.
Sec. 158.805 Mission impact reviews.
(a) The Department reviews a DHS-CS employee's mission impact
throughout the employee's service in the DHS-CS and generates a mission
impact summary at least annually. The Department may conduct mission
impact reviews concurrently with development reviews.
(b) In reviewing a DHS-CS employee's mission impact, individually
or as part of a group of DHS-CS employees, or both, the Department
considers factors such as:
(1) Superior application of CTMS qualifications to perform DHS-CS
cybersecurity work;
(2) Significant enhancements to CTMS qualifications;
(3) Special contributions to cybersecurity technologies,
techniques, tactics, or procedures; and
(4) Notable improvements to execution of the DHS cybersecurity
mission.
(c) The Department uses mission impact summary information to make
distinctions among DHS-CS employees, such as comparing, categorizing,
and ranking DHS-CS employees on the basis of mission impact to support
decisions related to recognition for DHS-CS employees under Sec. Sec.
158.630 through 158.634.
Sec. 158.806 Development reviews.
(a) The Department reviews a DHS-CS employee's career progression,
as described in Sec. 158.803(b) throughout the employee's service in
the DHS-CS. The Department generates a development summary, at least
annually, which may include plans for a DHS-CS employee's continual
learning in alignment with the criteria for continual learning under
the career development program described in Sec. 158.803.
(b) As part of development reviews, the Department may compare,
categorize, and rank DHS-CS employees to support decisions related to
professional development and training under Sec. 158.640. The
Department may also use information from development reviews in
matching subsequent assignments under Sec. 158.703. The Department may
conduct development reviews concurrently with mission impact reviews.
Subpart I--Employee Rights, Requirements, and Input
Sec. 158.901 Federal employee rights and processes.
(a) Adverse actions: Nothing in this part affects the rights of CS
employees under 5 U.S.C. Chapter 75, 5 U.S.C. 4303, and 5 CFR parts 432
and 752.
(b) Reductions in force. The provisions of 5 U.S.C. Chapter 35,
Subchapter I and 5 CFR part 351 regarding reductions in force apply to
talent management actions taken under this part.
(c) Redress with third parties. Nothing in this part affects the
rights, as provided by law, of a DHS-CS employee to seek review before
a third party of a talent management action taken under this part
involving that employee, including seeking review before the:
(1) Equal Employment Opportunity Commission, regarding
discrimination under Federal anti-discrimination laws;
(2) Merit Systems Protection Board, regarding matters such as
adverse actions under 5 U.S.C. Chapter 75 or Chapter 43 and individual
rights of action under 5 U.S.C. Chapter 12;
(3) Office of Special Counsel, regarding matters such as
whistleblower retaliation and other prohibited personnel practices
under 5 U.S.C. 2302 and the Hatch Act (5 U.S.C. 7321 et seq.); and
(4) Department of Labor, regarding matters covered by the Uniformed
Services Employment and Reemployment Rights Act (38 U.S.C. 4301 et
seq.).
(d) Back pay. Back pay remains available under 5 U.S.C. 5596 and 5
CFR part 550, subpart H, for unjustified or unwarranted talent
management actions.
Sec. 158.902 Ethics requirements.
(a) DHS-CS employees, including such employees providing
uncompensated service and DHS-CS advisory appointees, are employees
covered by the Ethics in Government Act section 101(f)(3), and are
subject to the criminal conflict of interest rules as well as
government ethics requirements applicable to Federal employees,
including:
(1) Criminal conflict of interest provisions in 18 U.S.C. 201-209;
(2) Ethics in Government Act, as amended, and implementing
regulations in 5 CFR, Chapter XVI, Subchapter B, including financial
disclosure reporting in 5 CFR part 2634 and the Standards of Ethical
Conduct for Employees of the Executive Branch in 5 CFR part 2635;
(3) Supplemental Standards of Ethical Conduct for Employees of the
Department of Homeland Security in 5 CFR part 4601; and
(4) Department policy.
(b) Under the ethics requirements described in paragraph (a) of
this section, DHS-CS employees must seek approval for certain outside
activities, comply with ethics program requirements, and other
applicable laws, including post-government employment restrictions.
Sec. 158.903 Employee input program.
(a) Program. The Department establishes and administers a program
for DHS-CS employees to express employment-related concerns and
recommendations for enhancing CTMS administration and DHS-CS
management. Under such a program, a DHS-CS employee may request review
of certain talent management actions
[[Page 47912]]
related to the employee's employment in the DHS-CS or related to the
processes, systems, and programs established under this part, or both.
The Cybersecurity Talent Management Board may use information from this
program for the periodic evaluation of CTMS described in Sec. 158.302.
(b) Policy. CTMS policy implementing this section addresses:
(1) Talent management actions covered by the employee input
program;
(2) The process for DHS-CS employees to express input; and
(3) The interaction of the employee input program with relevant
processes for redress with third parties of employment-related actions,
including those described in Sec. 158.901.
Subpart J--Advisory Appointments
Sec. 158.1001 Advisory appointments and advisory appointees.
(a) An advisory appointment is an appointment to a qualified
position that:
(1) The Secretary determines is of a policy-determining, policy-
making, or policy-advocating character or involves a close and
confidential working relationship with the Secretary or other key
appointed officials;
(2) Does not have a salary set by statute; and
(3) Is not required to be filled by an appointment by the
President.
(b) An advisory appointment to a qualified position is treated as a
Schedule C position under 5 CFR 213.3301 except regarding appointment
and compensation. Talent management for a DHS-CS advisory appointee is
in accordance with the provisions of 5 CFR applicable to Schedule C
appointees, except that appointment and compensation for a DHS-CS
advisory appointee is governed by this part.
(c) Employment restrictions such as those concerning the criminal
conflict of interest statutes, standards of ethical conduct, partisan
political activity, and contained in laws such as Executive Orders,
government-wide ethics regulations and the Hatch Act (5 U.S.C. 7321 et
seq.), apply to a DHS-CS advisory appointee as if the employee were a
Schedule C appointee.
(d) The Department tracks and coordinates advisory appointments
with the Executive Office of the President and the Office of Personnel
Management (OPM), as appropriate.
Sec. 158.1002 Appointment of advisory appointees.
(a) Appointment of an individual, including a former DHS-CS
employee, to an advisory appointment is governed by this subpart J and
subpart E of this part.
(b) An individual for appointment to an advisory appointment must
participate in the assessment program described in Sec. 158.520. The
Secretary or designee must approve the appointment of an individual to
an advisory appointment by name, and an individual appointed to an
advisory appointment serves at the will of the Secretary.
(c) A DHS-CS advisory appointee may be removed at any time. In
accordance with 5 U.S.C. 7511(b), the provisions of 5 U.S.C. Chapter
75, subchapter II do not apply to talent management actions taken under
this part for a DHS advisory appointee.
(d) An advisory appointment terminates no later than the end of the
term of the U.S. President under which the advisory appointee was
appointed.
(e) The Secretary or designee establishes a limit on the number of
advisory appointments under this subpart J, and the total number of
advisory appointments under this subpart may not exceed that limit at
any time.
(f) The Department may not change an advisory appointment to a
renewable appointment or continuing appointment.
(g) The Department may not use an advisory appointment solely or
primarily for the purpose of detailing any individual to the White
House.
Sec. 158.1003 Compensation for advisory appointees.
(a) General. Compensation for a DHS-CS advisory appointee is
governed by this subpart J and subpart F of this part. A DHS-CS
advisory appointee may provide uncompensated service and any such
service is gratuitous service.
(b) Compensation. As compensation for service in the DHS-CS, a DHS-
CS advisory appointee receives a salary as described in paragraph (c)
this section, unless the appointee is providing uncompensated service.
A DHS-CS advisory appointee, except such an employee providing
uncompensated service, may also receive additional compensation as
described in paragraph (d) of this paragraph.
(c) Salary. A DHS-CS advisory appointee receives a salary under the
salary system described in Sec. 158.610.
(1) Setting salary. The Department determines the salary for an
individual accepting an advisory appointment to a qualified position
under Sec. 158.620.
(2) Adjusting salary. The Department determines any adjustments to
salary of a DHS-CS advisory appointee under Sec. 158.621.
(3) Extended range. A DHS-CS advisory appointee is ineligible for a
salary in the extended range.
(4) Local cybersecurity talent market supplement. The Department
may provide a DHS-CS advisory appointee a local cybersecurity talent
market supplement under Sec. 158.612.
(d) Additional compensation. In alignment with the compensation
strategy in Sec. 158.601, the Department may provide the following
types of additional compensation to a DHS-CS advisory appointee for the
purposes of each such type as described under this part and subject to
the requirements of this section. An individual appointed to an
advisory appointment is ineligible to receive any type of additional
compensation under this part as part of an offer of employment in the
DHS-CS.
(1) Types. Additional compensation under CTMS for a DHS-CS advisory
appointee is:
(i) Recognition adjustments under Sec. 158.631, except the
Secretary or designee must approve any such recognition for a DHS-CS
advisory appointee;
(ii) Recognition payments under Sec. 158.632, except the Secretary
or designee must approve any such recognition for a DHS-CS advisory
appointee;
(iii) Recognition time-off under Sec. 158.633, except the
Secretary or designee must approve any such recognition for a DHS-CS
advisory appointee;
(iv) Honorary recognition under Sec. 158.634;
(v) Professional development and training under Sec. 158.640, so
long as a professional development and training program described in
Sec. 158.640 explicitly covers DHS-CS advisory appointee and prohibits
such employees from receiving any payment or reimbursement for costs of
academic degree training or expenses to obtain professional
credentials, including examinations to obtain such credentials;
(vi) Allowances in nonforeign areas under Sec. 158.643; and
(vii) Other types of compensation, including leave and benefits,
authorized under Sec. Sec. 158.650 through 158.655 and provided in
accordance with relevant provisions of other laws.
(2) Combining types. A DHS-CS advisory appointee may receive any
type of additional compensation described in paragraph (c)(1) of this
section in combination with any other such type subject to the
requirements of subpart F of this part and the requirements and
restrictions of this section.
[[Page 47913]]
(3) Restrictions. Additional compensation described in paragraph
(d)(1) of this section is subject to, and may be limited by:
(i) The aggregate compensation limit described in Sec. 158.604;
(ii) Prohibitions in 5 U.S.C. 4508, guidance from the Office of
Management and Budget and Office of Personnel Management, and any other
provisions of law governing compensation for political appointees; and
(iii) Other requirements and restrictions in CTMS policy.
(e) Compensation administration. For purposes of administering
compensation under this part for a DHS-CS advisory appointee, the
Department administers salary and other compensation, including leave,
based on consideration of the employee's work schedule under the work
scheduling system described in Sec. 158.705, and may convert the
appointee's salary into an hourly rate, biweekly rate, or other rate.
Alejandro N. Mayorkas,
Secretary, U.S. Department of Homeland Security.
[FR Doc. 2021-17824 Filed 8-25-21; 8:45 am]
BILLING CODE 9112-FC-P