CFR Subpart D

CFR Subpart D
in effect

5 C.F.R. § 9701.401 Purpose.

(a) This subpart provides for the establishment in the Department of Homeland Security of at least one performance management system as authorized by 5 U.S.C. chapter 97. (b) The performance management system established under this subpart, working in conjunction with the pay system established under subpart C of this part, is designed to promote and sustain a high-performance culture by incorporating the following features: (1) Adherence to merit principles set forth in 5 U.S.C. 2301; (2) A fair, credible, and transparent employee performance appraisal system; (3) A link between elements of the pay system established in subpart C of this part, the employee performance appraisal system, and the Department's strategic plan; (4) Employee involvement in the design and implementation of the system (as provided in § 9701.105); (5) Adequate training and retraining for supervisors, managers, and employees in the implementation and operation of the performance management system; (6) Periodic performance feedback and dialogue among supervisors, managers, and employees throughout the appraisal period, with specific timetables for review; (7) Effective safeguards so that the management of the system is fair and equitable and based on employee performance; and (8) A means for ensuring that adequate resources are allocated for the design, implementation, and administration of the performance management system that supports the pay system established under subpart C of this part.

5 C.F.R. § 9701.402 Coverage.

(a) This subpart applies to eligible DHS employees in the categories listed in paragraph (b) of this section, subject to a determination by the Secretary or designee under § 9701.102(b), except as provided in paragraph (c) of this section. (b) The following employees are eligible for coverage under this subpart: (1) Employees who would otherwise be covered by 5 U.S.C. chapter 43; and (2) Employees who were excluded from chapter 43 by OPM under 5 CFR 430.202(d) prior to the date of coverage of this subpart, as determined under § 9701.102(b). (c) This subpart does not apply to employees who are not expected to be employed longer than a minimum period (as defined in § 9701.404) during a single 12-month period.

5 C.F.R. § 9701.403 Waivers.

When a specified category of employees is covered by the performance management system(s) established under this subpart, 5 U.S.C. chapter 43 is waived with respect to that category of employees.

5 C.F.R. § 9701.404 Definitions.

In this subpart— Appraisal means the review and evaluation of an employee's performance. Appraisal period means the period of time established under a performance management system for reviewing employee performance. Competencies means the measurable or observable knowledge, skills, abilities, behaviors, and other characteristics required by a position. Contribution means a work product, service, output, or result provided or produced by an employee that supports the Departmental or organizational mission, goals, or objectives. Minimum period means the period of time established by DHS during which an employee must perform before receiving a rating of record. Performance means accomplishment of work assignments or responsibilities. Performance expectations means that which an employee is required to do, as described in § 9701.406, and may include observable or verifiable descriptions of quality, quantity, timeliness, and cost effectiveness. Performance management means applying the integrated processes of setting and communicating performance expectations, monitoring performance and providing feedback, developing performance and addressing poor performance, and rating and rewarding performance in support of the organization's goals and objectives. Performance management system means the policies and requirements established under this subpart, as supplemented by DHS implementing directives, for setting and communicating employee performance expectations, monitoring performance and providing feedback, developing performance and addressing poor performance, and rating and rewarding performance. Rating of record means a performance appraisal prepared— (1) At the end of an appraisal period covering an employee's performance of assigned duties against performance expectations over the applicable period; or (2) To support a pay determination, including one granted in accordance with subpart C of this part, a within-grade increase granted under 5 CFR 531.404, or a pay determination granted under other applicable rules. Unacceptable performance means the failure to meet one or more performance expectations.

5 C.F.R. § 9701.405 Performance management system requirements.

(a) DHS will issue implementing directives that establish one or more performance management systems for DHS employees, subject to the requirements set forth in this subpart. (b) Each DHS performance management system must— (1) Specify the employees covered by the system(s); (2) Provide for the periodic appraisal of the performance of each employee, generally once a year, based on performance expectations. (3) Specify the minimum period during which an employee must perform before receiving a rating of record; (4) Hold supervisors and managers accountable for effectively managing the performance of employees under their supervision as set forth in paragraph (c) of this section; (5) Include procedures for setting and communicating performance expectations, monitoring performance and providing feedback, and developing, rating, and rewarding performance; and (6) Specify the criteria and procedures to address the performance of employees who are detailed or transferred and for employees in other special circumstances. (c) In fulfilling the requirements of paragraph (b) of this section, supervisors and managers are responsible for— (1) Clearly communicating performance expectations and holding employees responsible for accomplishing them; (2) Making meaningful distinctions among employees based on performance; (3) Fostering and rewarding excellent performance; and (4) Addressing poor performance.

5 C.F.R. § 9701.406 Setting and communicating performance expectations.

(a) Performance expectations must align with and support the DHS mission and its strategic goals, organizational program and policy objectives, annual performance plans, and other measures of performance. Such expectations include those general performance expectations that apply to all employees, such as standard operating procedures, handbooks, or other operating instructions and requirements associated with the employee's job, unit, or function. (b) Supervisors and managers must communicate performance expectations, including those that may affect an employee's retention in the job. Performance expectations need not be in writing, but must be communicated to the employee prior to holding the employee accountable for them. However, notwithstanding this requirement, employees are always accountable for demonstrating appropriate standards of conduct, behavior, and professionalism, such as civility and respect for others. (c) Performance expectations may take the form of— (1) Goals or objectives that set general or specific performance targets at the individual, team, and/or organizational level; (2) Organizational, occupational, or other work requirements, such as standard operating procedures, operating instructions, administrative manuals, internal rules and directives, and/or other instructions that are generally applicable and available to the employee; (3) A particular work assignment, including expectations regarding the quality, quantity, accuracy, timeliness, and/or other expected characteristics of the completed assignment; (4) Competencies an employee is expected to demonstrate on the job, and/or the contributions an employee is expected to make; or (5) Any other means, as long as it is reasonable to assume that the employee will understand the performance that is expected. (d) Supervisors must involve employees, insofar as practicable, in the development of their performance expectations. However, final decisions regarding performance expectations are within the sole and exclusive discretion of management.

5 C.F.R. § 9701.407 Monitoring performance and providing feedback.

In applying the requirements of the performance management system and its implementing directives and policies, supervisors must— (a) Monitor the performance of their employees and the organization; and (b) Provide timely periodic feedback to employees on their actual performance with respect to their performance expectations, including one or more interim performance reviews during each appraisal period.

5 C.F.R. § 9701.408 Developing performance and addressing poor performance.

(a) Subject to budgetary and other organizational constraints, a supervisor must— (1) Provide employees with the proper tools and technology to do the job; and (2) Develop employees to enhance their ability to perform. (b) If during the appraisal period a supervisor determines that an employee's performance is unacceptable, the supervisor must— (1) Consider the range of options available to address the performance deficiency, which include but are not limited to remedial training, an improvement period, a reassignment, an oral warning, a letter of counseling, a written reprimand, and/or an adverse action (as defined in subpart F of this part); and (2) Take appropriate action to address the deficiency, taking into account the circumstances, including the nature and gravity of the unacceptable performance and its consequences. (c) As specified in subpart G of this part, employees may appeal adverse actions based on unacceptable performance.

5 C.F.R. § 9701.409 Rating and rewarding performance.

(a)(1) Except as provided in paragraphs (a)(2) and (3) of this section, each DHS performance management system must establish a single summary rating level of unacceptable performance, a summary rating level of fully successful performance (or equivalent), and at least one summary rating level above fully successful performance. (2) For employees in an Entry/Developmental band, the DHS performance management system(s) may establish two summary rating levels, i.e., an unacceptable rating level and a rating level of fully successful (or equivalent). (3) At his or her sole and exclusive discretion, the Secretary or designee may under extraordinary circumstances establish a performance management system with two summary rating levels, i.e., an unacceptable level and a higher rating level, for employees not in an Entry/Developmental band. (b) A supervisor or other rating official must prepare and issue a rating of record after the completion of the appraisal period. An additional rating of record may be issued to reflect a substantial change in the employee's performance when appropriate. A rating of record will be used as a basis for determining— (1) An increase in basic pay under § 9701.324; (2) A locality or special rate supplement increase under § 9701.336; (3) A performance pay increase determination under § 9701.342(a); (4) A within-grade increase determination under 5 CFR 531.404, prior to conversion to the pay system established under subpart C of this part; (5) A pay determination under any other applicable pay rules; (6) Awards under any legal authority, including 5 U.S.C. chapter 45, 5 CFR part 451, and a Departmental or organizational awards program; (7) Eligibility for promotion; or (8) Such other action that DHS considers appropriate, as specified in the implementing directives. (c) A rating of record must assess an employee's performance with respect to his or her performance expectations and/or relative contributions and is considered final when issued to the employee with all appropriate reviews and signatures. (d) DHS may not impose a forced distribution or quota on any rating level or levels. (e) A rating of record issued under this subpart is an official rating of record for the purpose of any provision of title 5, Code of Federal Regulations, for which an official rating of record is required. (f) DHS may not lower the rating of record of an employee on an approved absence from work, including the absence of a disabled veteran to seek medical treatment, as provided in Executive Order 5396. (g) A rating of record may be grieved by a non-bargaining unit employee (or a bargaining unit employee when no negotiated procedure exists) through an administrative grievance procedure established by DHS. A bargaining unit employee may grieve a rating of record through a negotiated grievance procedure, as provided in subpart E of this part. An arbitrator hearing a grievance is subject to the standards of review set forth in § 9701.521(g)(2). Except as otherwise provided by law, an arbitrator may not conduct an independent evaluation of the employee's performance or otherwise substitute his or her judgment for that of the supervisor. (h) A supervisor or other rating official may prepare an additional performance appraisal for the purposes specified in the applicable performance management system (e.g., transfers and details) at any time after the completion of the minimum period. Such an appraisal is not a rating of record. (i) DHS implementing directives will establish policies and procedures for crediting performance in a reduction in force, including policies for assigning additional retention credit based on performance. Such policies must comply with 5 U.S.C. chapter 35 and 5 CFR 351.504.

5 C.F.R. § 9701.410 DHS responsibilities.

In carrying out its performance management system(s), DHS must— (a) Transfer ratings between subordinate organizations and to other Federal departments or agencies; (b) Evaluate its performance management system(s) for effectiveness and compliance with this subpart, DHS implementing directives and policies, and the provisions of 5 U.S.C. chapter 23 that set forth the merit system principles and prohibited personnel practices; (c) Provide OPM with a copy of the implementing directives, policies, and procedures that implement this subpart; and (d) Comply with 29 CFR 1614.102(a)(5), which requires agencies to review, evaluate, and control managerial and supervisory performance to ensure enforcement of the policy of equal opportunity.

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