Number: 

DAO 202-300

SECTION 1. PURPOSE.

.01 This Order prescribes policies and procedures on a variety of subjects related to
competitive and excepted service employment in Department of Commerce (the Department).

.02 This revision updates Departmental policy for compliance with current rules and
regulations, and removes references to the obsolete Federal Personnel Manual. In addition, the revision adds the following sections: Qualification Determinations; Employment of Relatives; Selective Service Registration; and Use of Private Sector Temporaries. It also renames the section on Basic Requirements, to Policy; on Employment of Aliens, to Employment of Non-Citizens; and changes Priority Placement Program to Reemployment Assistance Programs; and removes the introductory index of sections.

SECTION 2. SCOPE.

.01 This Order applies to both positions and employees in the competitive and excepted service. Additional information on employees and positions in the excepted service can be located in Department Administrative Order (DAO) 202-302, "Employment in the Excepted Service."

.02 This Order, with the exception of Section 10, does not apply to positions or employees in the Senior Executive Service (SES), or positions or employees occupying Senior-Level (SL) and Scientific and Professional (ST) positions unless otherwise stated. Positions and employees in the SES and SL/ST positions filled under 5 United States Code (U.S.C.) 3104, are covered under the Department's "Executive Personnel Policy Manual."

.03 This Order does not apply to positions and employees in the Foreign Service. Positions and employees in the Foreign Service are covered under DAO 202-900, "Foreign Service Personnel Management."

.04 This Order does not apply to positions and employees in the National Oceanic and Atmospheric Administration (NOAA) Commissioned Officer Corps. Positions and employees in the NOAA Corps are covered under NOAA Commissions Corps Directives.

.05 This Order does not cover details of employees. Guidance on details is provided in

DAO 202-334, Details.

SECTION 3. POLICY.

.01 It is the policy of the Department that appointments and changes of employment status shall be made solely on the basis of merit and qualifications, within the limits of applicable laws and regulations. All qualified applicants and employees shall receive consideration without regard to race, color, religion, sex (including pregnancy and gender identity), national origin, age, disability, genetic information, marital status, political affiliation, sexual orientation, labor organization affiliation or non-affiliation, status of a parent, any other factor(s) stated in the Secretary's Policy Statement on Equal Employment Opportunity, or any other non-merit-based factor.

.02 Merit assignment Job Opportunity Announcements and all paid advertising for recruitment shall include a statement that the Department is an equal opportunity employer, and that it provides reasonable accommodations to applicants with disabilities where appropriate. Employment programs shall be consistent with the Department's guidance on equal employment opportunity.

SECTION 4. TIME-IN-GRADE RESTRICTIONS.

.01 Competitive Service.

a. General Schedule Positions. Time-in-grade restrictions under 5 Code of Federal Regulations (CFR), Part 300, Subpart F, apply to the advancement to positions at a higher level in the Department, covered by the General Schedule.

b. Alternative Personnel Systems. Positions covered by alternative personnel systems have their own specific requirements for advancement to a higher band/level or higher rate of basic pay.

1. Information and requirements for the Commerce Alternative Personnel System (CAPS), formerly the Demonstration Project, can be found in the CAPS Operating Procedures Manual.

2. Information and requirements for the National Institute of Standards and Technology (NIST)
Alternative Personnel Management System (APMS) can be found in the NIST Project Operating
Procedures.

.02 Excepted Service. It is the policy of the Department that promotions to positions in the excepted service will be subject to the same time-in-grade regulations as those that apply to the competitive service (except for positions specifically exempt from this requirement). Time-in-grade requirements for positions in the excepted service are covered in DAO 202-302.

.03 Exclusions. The actions listed in 5 CFR 300.603(b) may be taken without regard to time-in-grade restrictions, but must be consistent with all other applicable requirements, such as qualification standards.

a. Requests for advancement to avoid hardship to the agency or inequity to an employee in an individual meritorious case must be approved by the Secretary or his/her designee, through the Director for Human Resources Management (Director).

.04 Creditable Service for Time-in-Grade. The Servicing Human Resources Office/Shared Service Center (SHRO/SSC) shall follow 5 CFR 300.605 when determining creditable service towards applicable time-in-grade restrictions of a position. Service under a part-time or an intermittent appointment is counted on the basis of calendar time in the grade, without regard to the actual time in a pay status.

Periods of paid leave and any nonpay status (e.g., leave without pay, furlough, suspension, absence without leave) are similarly creditable.

SECTION 5. QUALIFICATION DETERMINATIONS.

.01 Time-in-grade is only one of the requirements to be met for advancement through merit assignment in the competitive service. Employees must continue to meet occupational qualification standard requirements and any additional job-related qualification requirements established for the specified occupational series and grade/band level, as stated in the Office of Personnel Management's (OPM), "General Schedule Qualification Standards." Managers and human resources professionals continue to be bound by applicable civil service laws and the laws pertaining to equal employment opportunity.

.02 All promotions for General Schedule positions and those covered by an alternative personnel system must be merit-based, and based on an individual's competencies (knowledge, skills, and
abilities) needed for a particular position as well as OPM's "General Schedule Qualification Standards."

.03 To be eligible for a position, through merit assignment or competitive examining, an individual must possess the general or specialized experience or education required for the specified series and grade/band level, in accordance with OPM's "General Schedule Qualification Standards" In addition, an individual must meet any mandatory education and any additional job-related qualification requirements established for the position.

SECTION 6. SPECIAL REQUIREMENT FOR FILLING LEGAL POSITIONS.

.01 This Section applies to all attorney positions and to all other positions in the Department that involve the performance of a professional legal duty or that require professional legal training.

.02 Exceptions. Excepted from coverage under this Section are all positions in the Patent and Trademark Office that require varying degrees of legal training, except those in the Office of the Solicitor, and others as the General Counsel may agree. Also, excepted from coverage under this Section are positions within the Office of Counsel to the Inspector General and other positions within the Office of Inspector General that require varying degrees of legal training; pursuant to Section 3(g) of the Inspector General Act of 1978, as amended, 5 U.S.C. App., the Inspector General is entitled to obtain legal advice from counsel that reports directly to the Inspector General.

.03 Time-in-Grade and Qualification Requirements. The General Counsel shall establish time-in-grade requirements and be responsible for administering the requirements of Part 302 of the Civil Service Regulations with respect to the establishment of qualification standards for all covered attorney positions in the Department.

.04 Vacancies. All new positions, vacancies, and prospective vacancies shall be discussed with, and clearance obtained in advance from, the General Counsel of the Department or his/her designated representative before any action is taken with respect to the selection of a new appointee or replacement of an incumbent

.05 Selection of Applicants. The head of each component of the Department serviced by a legal office that is not part of the Department's Office of General Counsel (except as noted in paragraph 6.02), or his/her designated representative, shall be responsible for recommending selection and appointment, reappointment, or promotion action concerning all attorney positions in the legal office.

.06 Position Classification and Personnel Actions. All position classification actions and all personnel placement actions shall be submitted to the designated SHRO/SSC for obtaining required prior approvals as provided by DAO 202-250, "Delegation of Authority for Human Resources Management" These actions will be cleared with the General Counsel or his/her designated representative by the SHRO/SSC.

SECTION 7. EMPLOYMENT OF ANNUITANTS.

.01 An annuitant under either the Civil Service Retirement System (CSRS) or the Federal
Employees Retirement System (FERS), including disability annuitants, may be reemployed in any position for which they are qualified. Persons retired under another retirement law may be reemployed only as provided by the particular Act under which they retired.

.02 The designated SHRO/SSC must notify OPM in writing on or before the date of the appointment in accordance with 5 CFR 837.103. This requirement is met through processing the Standard Form (SF)-52, Request for Personnel Action, through the designated payroll provider.

.03 The effect of a retire's employment on his/her annuity is governed by the particular retirement law under which he/she retired as well as by OPM regulation.

.04 Reemployed annuitants shall be advised in writing by the SHRO/SSC of the effect reemployment has on annuitant status and/or the continued receipt of annuity, the possible future retirement benefits that may be payable to an annuitant on the basis of reemployment, and for CSRS annuitants, whether the annuitant may elect to have retirement deductions withheld from their base pay.

.05 An annuitant whose annuity continues while he/she is reemployed serves at the will of the appointing officer, and may be separated at any time, regardless of the appointment type.

.06 There are additional requirements relating to pay that are applicable to the employment of Foreign Service personnel who are subject to 22 U.S.C. Foreign Relations and Intercourse. In addition, Sections 823 and 824 of the Foreign Service Act of 1980 prescribes pay entitlements.

SECTION 8. EMPLOYMENT OF RELATIVES.

.01 An individual may not be appointed, employed, promoted, or advanced in or to a civilian position in the Department if such appointment, employment, promotion, or advancement has been advocated by a public official, serving in or exercising jurisdiction or control over the Department, and who is a relative of the individual, 5 U.S.C. 3110(b).

.02 In accordance with 5 CFR 310.102, OPM may prescribe regulations authorizing the temporary employment of relatives, in certain conditions. As such, a public official may employ relatives when necessary to meet urgent needs resulting from an emergency posing an immediate threat to life or property, or a national emergency as defined in 5 CFR 230.402(a)(1). These appointments are temporary and may not exceed 30 days, with the ability to be extended one additional 30-day period if the emergency still exists.

SECTION 9. EMPLOYMENT OF NON-CITIZENS.

.01 The Department gives priority to hiring U.S. citizens and nationals; however, non-citizens may be hired in excepted service or competitive service positions under certain conditions. Bureau/operating units considering hiring a non-citizen in the excepted service or competitive service must follow competitive selection procedures and meet all requirements in either Section 9.06, or 9.07 of this Order, as applicable. Non-citizens may only be hired in excepted service positions in the absence of qualified citizens, and may only be hired in competitive service positions when necessary to promote the efficiency of the service or for temporary appointments.

.02 The hiring of ALL non-citizens requires prior approval from OPM, through the Director, Office of Human Resources Management (OHRM). Requests must be submitted from the SHRO/SSC to the Director, OHRM for review and collaboration with the Director, Office of Security (OSY). Upon a favorable recommendation from the Director, OSY (based on the risk assessment), the Director, OHRM will forward the request to OPM. The Director, OHRM will provide a written response to the SHRO/SSC once OPM has made a determination. Refer to the current HR Bulletin on the process and required documentation.

.03 It is the policy of the Department to permit the employment of a non-citizen only after the Department's OSY conducts a risk assessment that considers the threat, consequences, and vulnerabilities related to such employment, and determines the individual represents an acceptable risk to the Department.

.04 It is the policy of the Department to permit the employment of non-citizens only in positions that do not involve significant authority and responsibility in connection with the management of the Department or any bureau/operating unit thereof. In this context, "management" includes, but is not limited to, planning, programming, policy formulation, direction, supervision of operations, and control.

.05 Prevailing Rate Systems. Prevailing rate employees must be U.S. citizens or bona fide U.S. residents unless the Secretary of Labor certifies that no U.S. citizen or bona fide resident is available to fill the particular prevailing rate position, 5 U.S.C. 5342(c).

.06. Excepted Service Non-Citizen Appointing Authority. Upon OPM approval, a non-citizen hired in the absence of a qualified citizen may only be given a Schedule A excepted appointment, authorized by 5 CFR 213.3102(bb). The position must be withdrawn from the competitive service for the period it is filled by the non-citizen. The employee does not acquire competitive status and may not be promoted, reassigned, or reduced in grade/band level to another position in the excepted service unless a recruitment effort indicates there are no qualified citizens available for the position to which the non-citizen will be assigned. A non-citizen cannot be promoted, reassigned, or reduced in grade/band level to a competitive service position without meeting the requirements of a competitive service position in Section 9.07 of this Order.

When considering a non-citizen for Federal employment in the excepted service, all of the requirements below must be met:

a. General statutory restrictions on the expenditure of funds;

b. Special statutory restrictions applicable to the particular bureau/operating unit;

c. Immigration law;

d. Appropriations Act ban on paying certain non-citizens; and

e. Departmental policy as set forth in this Section.

.07 Competitive Service Appointing Authority. OPM is authorized by 5 CFR 7.3(c) to approve the appointment of non-citizens to positions in the competitive service when necessary to promote the efficiency of the service in specific cases, or for temporary appointments when usual selection procedures are followed and all of the requirements below are met:

a. Immigration law;

b. Appropriations Act ban on paying certain non-citizens; and

c. Executive order restrictions on appointing non-citizens to the competitive service.

SECTION 10. SELECTIVE SERVICE REGISTRATION.

.01 All appointments shall comply with the provisions of 5 U.S.C. 3328, which prohibits any male born after December 31, 1959, from being appointed to a position in an executive agency if he is or was required to register with the Selective Service System (SSS) but has knowingly and willfully not complied. All appointments to positions throughout the Department, including SL/ST positions, and those in the SES, are covered.

.02 Male applicants born after December 31, 1959, shall be asked to complete a pre-appointment statement certifying to their selective service registration status in accordance with 5 CFR 300.704(b).

.03 Male applicants who are 26 years of age or older, who are not registered, shall have the opportunity to establish that their non-registration was neither knowing nor willful by submitting a written request to OPM, through the Director, to make a determination. The designated SHRO/SSC must submit the required documents, in accordance with 5 CFR 300.704(b), 300.705(d)(1), and 300.705(d)(2), to the Director.

.04 The SHRO/SSC will be notified by the Director of OPM's determination. The applicant or the bureau/operating unit may submit a written request, through the Director, for OPM to reopen and reconsider the determination. The determination based upon the reconsideration request is final, as there is no further right to administrative review.

SECTION 11. REEMPLOYMENT ASSISTANCE PROGRAMS/PLANS.

.01 The Department is required to establish and maintain a reemployment priority list in accordance with 5 CFR 330.201 for each commuting area in which it separates eligible competitive service employees by reduction-in-force, or when a former competitive service employee recovers from a compensable work-related injury after more than 1 year. The Department must provide career transition assistance in accordance with 5 CFR 330.601 for Federal employees; and establish a special interagency career transition assistance plan in accordance with 5 CFR 330.701 for displaced employees that will be used when the Department considers candidates from outside the agency for vacancies.

.02 Programs and Plans. The following programs and plans will be used to meet the requirements:

a. Reemployment Priority List (RPL). The RPL is the mechanism the Department will use to ensure that reemployment consideration is given to current and former competitive service employees who will be or were separated by reduction-in-force or fully recovered from a compensable work-related injury after more than 1 year. The Department will give RPL registrants placement priority for most competitive service vacancies (permanent, term, temporary), before hiring someone from outside its own permanent competitive service workforce. Additional information on the RPL program can be found in 5 CFR Part 330, Subpart B; OPM's "Delegated Examining Operations Handbook"; as well as the current HR Bulletin on the RPL.

OHRM is responsible for maintaining the Department's RPL. SHROs/SSC are responsible for electronically notifying OHRM of an RPL-eligible employee no later than 10 calendar days after receipt of an employee's application or request. The notification must specify the conditions under which the eligible individual will accept employment, including the date of eligibility and date of expiration, title and occupational series, grade/band level, type of work schedule (e.g., full-time, part-time, seasonal, intermittent, etc.) as the position from which the employee was or will be separated, minimum hours or work per week, duty station (geographical area), the bureau/operating unit's name, and the SHRO/SSC contact person's name and telephone number.

OHRM will electronically disseminate the RPL to the SHROs/SSC within the Department at the beginning of each month or a notice stating there are no eligibles, whichever is applicable. A revised RPL or notice will be disseminated immediately upon any changes from the previous RPL or notice.

b. Career Transition Assistance Plan (CTAP). The CTAP provides selection priority for surplus and displaced employees in the Department's competitive and excepted service. A "well-qualified" CTAP eligible must be selected over other candidates from within or outside the Department unless the action is an exception under 5 CFR 330.609. Additional information on the CTAP can be found in 5 CFR Part 330, Subpart F; OPM's "Delegated Examining Operations Handbook"; as well as the current CTAP/ICTAP HR Bulletin, which provides the Department's definition of "well-qualified."

OHRM is responsible for maintaining the Department's CTAP list of eligibles. The SHRO/SSC is responsible for electronically notifying OHRM of employees currently holding CTAP notices. The notification must include the position's title and occupational series, grade/band level, promotion potential, duty station (geographical area), and the CTAP expiration date, the bureau/operating unit's name, and the SHRO/SSC contact person's name and telephone number.

CTAP must be cleared before non-competitively reassigning an employee from one duty station (geographic area) to another (either within or not within the same bureau/operating unit), or non-competitively reassigning an employee from one bureau/operating unit to another bureau/operating unit within the same duty station (geographic area). The SHRO/SSC may clear the CTAP by submitting an electronic request to OHRM. Requests must include the title and occupational series, grade/band, promotion potential, and duty station (geographic area). OHRM will respond electronically to the request.

c. Interagency Career Transition Assistance Plan (ICTAP). The ICTAP provides selection priority for eligible non-Department, displaced Federal employees when filling a position from outside of the Department's permanent competitive service workforce. The Plan does not prohibit reassignments or promotions of employees within the Department as permitted by regulations. Additional information on the ICTAP can be located in 5 CFR Part 330, Subpart G; OPM's "Delegated Examining Operations Handbook"; as well as the current CTAP/ICTAP HR Bulletin that provides the Department's definition of "well-qualified."

SECTION 12. USE OF PRIVATE SECTOR TEMPORARIES.

.01 The Department may enter into a contract or other procurement arrangement with a temporary help service firm for brief or intermittent use of the services of private sector temporaries for competitive service positions and excepted service Schedule A and B positions. These services can only be used when the mission-related need cannot be met with current Departmental employees or through the direct appointment of temporary employees within the needed time frame and for the duration of time necessary, and current Departmental employees cannot be reassigned or detailed to perform the work without causing undue delay in their regular work. In accordance with Title 5 CFR 300.506, Federal procurement laws and the Federal Acquisition Regulation, as applicable, must be followed in procuring services from the private sector.

.02 A temporary help service firm is a private sector entity that provides other organizations with specific services performed by its employees. The firm is the employer of the employee(s) and maintains that relationship during the time its employees are assigned to a client organization. The firm recruits, tests, hires, trains, assigns, pays, provides benefits to, and as necessary, disciplines and terminates its employees. Private sector temporaries or outside temporaries are those employees of a temporary help service firm providing services to client organizations.

.03 Temporary help services in a single situation, as defined in 5 CFR 300.503, may only initially be used for no more than 120 working days. Provided the situation continues to exist beyond the initial 120 workdays, the use of the services may be extended up to the maximum limit of 240 workdays. An exception to the maximum 240 workdays may be provided only when the bureau/operating unit has determined that using the services of the same individual for the same situation will prevent significant delay, and the Office of Acquisition Management approves the extension.

a. These services may be used when one of the following short-term situations exists:

1.An employee is absent for a temporary period because of a personal need including emergency, accident, illness, parental or family responsibilities, or mandatory jury service, but does not include vacations or other circumstances that are not shown to be compelling in the judgment of the Department; or

2. The Department must carry out work for a temporary period that cannot be delayed in the judgement of the Department because of a critical need.

b. These services must not be used for the following:

1. In lieu of the regular recruitment and hiring procedures under the civil service laws for
permanent appointment;

2. To displace a Federal employee;

3. To circumvent controls on employment levels;

4. In lieu of appointing a surplus or displaced Federal employee;

5. For the work of SES, managerial, or supervisory positions; or

6. For performing inherently governmental functions.

.04 Bureau/Operating Units may not create an employer-employee relationship by their use of private sector temporaries. Private sector temporaries must not be considered or treated as Federal employees, must not be regarded as performing a personal service, and are not eligible for any civil-service employee benefits, including retirement and training.

SECTION 13. EFFECT ON OTHER ORDERS.

This Order supersedes DAO 202-300, dated January 6, 1983.

Signed by: Director for Human Resources Management and Chief Human Capital Officer

Approved by: Chief Financial Officer and Assistant Secretary for Administration

Office of Primary Interest: Office of Human Resources Management