Time-in-Grade Rule Eliminated, 66157-66160 [E8-26559]
Download as PDF
<![CDATA[
Federal Register / Vol. 73, No. 217 / Friday, November 7, 2008 / Rules and Regulations
employee’s current grade or pay level,
without consideration of the employee’s
eligibility to retain his or her current
grade or pay under part 536 of this
chapter or other authority. In
movements between pay schedules or
pay systems, the comparison rate of the
grade or pay level that is two grades
below that of the current position will
be compared with the comparison rate
of the grade or pay level of the offered
position. For this purpose, ‘‘comparison
rate’’ has the meaning given that term in
§ 536.103 of this chapter, except
paragraph (2) of that definition should
be used for the purpose of comparing
grade or levels of work in making
reasonable offer determinations in all
situations not covered by paragraph (1)
of that definition.
PART 842—FEDERAL EMPLOYEES
RETIREMENT SYSTEM—BASIC
ANNUITY
46. The authority citation for part 842
continues to read as follows:
■
Authority: 5 U.S.C. 8461(g); Secs. 842.104
and 842.106 also issued under 5 U.S.C.
8461(n); Sec. 842.104 also issued under
sections 3 and 7(c) of Pub. L. 105–274, 112
Stat. 2419; Sec. 842.105 also issued under 5
U.S.C. 8402(c)(1) and 7701(b)(2); Sec.
842.106 also issued under section 102(e) of
Pub. L. 104–8, 109 Stat. 102, as amended by
section 153 of Pub. L. 104–134, 110 Stat.
1321–102; Sec. 842.107 also issued under
sections 11202(f), 11232(e), and 11246(b) of
Pub. L. 105–33, 111 Stat. 251, and section
7(b) of Pub. L. 105–274, 112 Stat. 2419; Sec.
842.108 also issued under section 7(e) of Pub.
L. 105–274, 112 Stat. 2419; Sec. 842.213 also
issued under 5 U.S.C. 8414(b)(1)(B) and
section 1313(b)(5) of Pub. L. 107–296, 116
Stat. 2135; Secs. 842.304 and 842.305 also
issued under section 321(f) of Pub. L. 107–
228, 116 Stat. 1383, Secs. 842.604 and
842.611 also issued under 5 U.S.C. 8417; Sec.
842.607 also issued under 5 U.S.C. 8416 and
8417; Sec. 842.614 also issued under 5 U.S.C.
8419; Sec. 842.615 also issued under 5 U.S.C.
8418; Sec. 842.703 also issued under section
7001(a)(4) of Pub. L. 101–508, 104 Stat. 1388;
Sec. 842.707 also issued under section 6001
of Pub. L. 100–203, 101 Stat. 1300; Sec.
842.708 also issued under section 4005 of
Pub. L. 101–239, 103 Stat. 2106 and section
7001 of Pub. L. 101–508, 104 Stat. 1388;
subpart H also issued under 5 U.S.C. 1104;
Sec. 842.810 also issued under section 636 of
Appendix C to Pub. L. 106–554 at 114 Stat.
2763A–164; Sec. 842.811 also issued under
section 226(c)(2) of Public Law 108–176, 117
Stat. 2529.
pwalker on PROD1PC71 with RULES
47. In § 842.206, revise paragraph
(c)(3)(iv) to read as follows:
■
*
Involuntary retirement.
*
*
(c) * * *
VerDate Aug<31>2005
*
*
16:21 Nov 06, 2008
[FR Doc. E8–26562 Filed 11–6–08; 8:45 am]
BILLING CODE 6325–39–P
OFFICE OF PERSONNEL
MANAGEMENT
5 CFR Part 300
RIN 3206–AL18
Time-in-Grade Rule Eliminated
Office of Personnel
Management.
ACTION: Final rule.
AGENCY:
SUMMARY: The Office of Personnel
Management (OPM) is eliminating the
time-in-grade restriction on
advancement to competitive service
positions in the General Schedule. The
rule eliminates the 52-week time-ingrade requirement for promotions.
Employees must continue to meet
occupational qualification standard
requirements and any additional jobrelated qualification requirements
established for the position.
DATES: The rule is effective March 9,
2009.
Ms.
Janice Warren by telephone (202) 606–
0960; by FAX (202) 606–2329; by TTY
(202) 418–3134; or by e-mail
janice.warren@opm.gov.
FOR FURTHER INFORMATION CONTACT:
On
February 6, 2008, OPM published in the
Federal Register at 73 FR 6857 a
proposal to eliminate the time-in-grade
(TIG) restriction found in 5 CFR part
300, subpart F. The restriction applies to
Federal employees in competitive
service General Schedule positions at
SUPPLEMENTARY INFORMATION:
Subpart B—Eligibility
§ 842.206
(3) * * *
(iv) Not lower than the equivalent of
two grades or pay levels below the
employee’s current grade or pay level,
without consideration of the employee’s
eligibility to retain his or her current
grade or pay under part 536 of this
chapter or other authority. In
movements between pay schedules or
pay systems, the comparison rate of the
grade or pay level that is two grades
below that of the current position will
be compared with the comparison rate
of the grade or pay level of the offered
position. For this purpose, ‘‘comparison
rate’’ has the meaning given that term in
§ 536.103 of this chapter, except
paragraph (2) of that definition should
be used for the purpose of comparing
grades or levels of work in making
reasonable offer determinations in all
situations not covered by paragraph (1)
of that definition.
*
*
*
*
*
Jkt 217001
PO 00000
Frm 00015
Fmt 4700
Sfmt 4700
66157
grades 5 and above. These employees
qualify for promotions to higher grades
if they have: (1) At least one year of
specialized experience equivalent in
difficulty to the next lower grade level
or (in some cases) the equivalent
education; and (2) service of at least 52
weeks at their current grade (known as
‘‘time in grade’’).
The public comment period for the
proposed regulation ended on April 7,
2008. We received comments from
seven agencies, five unions, one
national employee organization, and 33
individuals. We also received 61 form
letters from individuals. We carefully
considered the comments; as a result,
we have decided to eliminate the timein-grade restriction. The final regulation
will become effective 120 days after the
publication date of this notice in order
to give agencies time to amend policies
and communicate changes to their
human resources staff and employees.
Below is a discussion of the comments
OPM received.
Comment Extension
The national employee organization
and almost half of the form letter
commenters suggested extending the
comment period because the
supplementary information
accompanying the proposed rule
provided incorrect dates for OPM’s prior
proposals to eliminate the time-in-grade
restrictions. The February 6, 2008,
proposal stated that OPM published its
prior proposals on June 14, 1995, and
January 10, 1996. In fact, they were
published on June 15, 1994, and January
10, 1995. However, the February 6, 2008
proposal provided correct citations to
the Federal Register notices for the
prior proposals at 59 FR 30717 and 60
FR 2546, respectively.
We are not extending the comment
period. OPM provided the dates and
citations for its previously-published
proposals as background information
only. Potential commenters could
adequately evaluate the February 6,
2008 proposal without reviewing the
prior proposals. Moreover, the February
6, 2008 proposal supplied correct
Federal Register citations for both of the
previously-published proposals, thereby
adequately facilitating their review by
potential commenters.
Potential for Abuse and Favoritism
Many commenters stated that
abolishing the time-in-grade
requirement would lead to abuse of a
manager’s promotion authority,
primarily because it would allow
managers to promote their favorite
employees. These commenters believe
that eliminating the time-in-grade
E:\FR\FM\07NOR1.SGM
07NOR1
pwalker on PROD1PC71 with RULES
66158
Federal Register / Vol. 73, No. 217 / Friday, November 7, 2008 / Rules and Regulations
requirement will subject agencies to
charges of disparate treatment, and that
the requirement ensures fairness and
equity in promotions. One commenter
also thinks too many individuals will
reach their full performance levels in
their positions too soon.
We disagree. The time-in-grade
requirement is only one of the
requirements for eligibility for
promotion. Managers must still select
only from those individuals who have at
least one year of specialized experience
equivalent in difficulty to the next lower
grade level or (in some cases) the
equivalent education. Moreover,
individuals must meet occupational
qualification standard requirements and
any additional job-related qualification
requirements established for the
position.
Further, since the advent of the merit
system, Federal managers always have
possessed discretion to choose whom to
promote. Managers are presumed to act
in good faith in making employment
decisions. In addition, there are
safeguards in place to protect the merit
system. Section 2302, which enumerates
prohibited personnel practices, defines
a personnel action as including a
promotion, and enhances merit system
protections that have existed in various
forms since the Nineteenth Century.
When the time-in-grade restriction
was first implemented, procedures for
redressing prohibited personnel
practices had not yet been enacted, and
OPM’s qualification standards did not
exist. Eliminating the time-in-grade
restriction does not alter management’s
responsibility to ensure that promotions
are merit-based, and based on an
individual’s relative knowledge, skills,
and abilities for a particular position.
In its oversight role, OPM will
continue to review agency promotion
actions for adherence to applicable
requirements and identify necessary
corrective actions.
The comment that the elimination of
the time-in-grade requirement will
result in individuals reaching their full
performance levels too soon is merely
speculative. The pace at which an
employee advances to the full
performance level of his or her position
is a function of the employee’s
experience and/or knowledge, skills,
and abilities relative to the qualification
standard for the position. Even after the
elimination of the time-in-grade
restriction, qualification standards will
provide the basis for managers to
determine whether a particular
employee is qualified for a promotion.
One individual commented that
although safeguards against improper
promotions exist, these systems have
VerDate Aug<31>2005
16:21 Nov 06, 2008
Jkt 217001
proven to be ineffective in responding to
alleged violations and prescribing
corrective or disciplinary actions. OPM
is not responding to this comment
because the efficacy of those safeguards
is beyond the scope of these regulations.
Impact on Minorities and Veterans
Many commenters were concerned
that eliminating the time-in-grade
requirement would have a negative
impact on minorities and veterans.
There is no logical or factual basis for
this concern. The time-in-grade
restriction applied to all individuals
seeking promotion above grade 5 to a
competitive service position, without
regard to whether employees are
minorities or veterans. Accordingly,
eliminating the restriction negates one
of the requirements for advancement
applicable to all individuals, including
minorities and veterans. In making
selections for promotions, managers and
human resources staff continue to be
bound by applicable civil service laws
and the laws pertaining to equal
employment opportunity.
Using Qualification Standards and
Delegated Examining
A number of commenters questioned
the use of qualification standards as the
sole determination for promotion. They
expressed concerns that qualification
determinations will be subjective. Some
commenters also felt that using
qualification standards will lead to
‘‘grade creep.’’
Agencies use qualification standards
to ensure candidates for promotion
demonstrate at least one year or the
appropriate level of education as
outlined in the OPM Operating Manual
Qualification Standards for General
Schedule Positions (available on the
OPM Web site (https://www.opm.gov)).
An individual may demonstrate the
required competencies (or knowledge,
skills, and abilities) by paid or unpaid
experience. This includes experience
gained through school, volunteer work,
military service, paid employment, or
hobbies. Beyond the OPM qualification
standards, agencies have discretion to
establish additional requirements that
employees must meet for promotions.
Examples include a specified level of
performance achieved; possession of
specific job-related competencies (or
knowledge, skills, and abilities); and
evidence of ability to perform higherlevel duties.
Qualification standards are minimum
requirements intended to identify
applicants who are likely to be able to
perform successfully on the job, and to
screen out those who are unlikely to do
so. Qualification standards are only one
PO 00000
Frm 00016
Fmt 4700
Sfmt 4700
element of a responsible human
resources management program. They
are not designed to substitute for a
careful analysis of applicants’
competencies (or knowledge, skills, and
abilities).
Before qualification standards were
implemented, agencies relied on timein-grade to ensure that individuals were
qualified for a higher-graded position.
Now that qualification standards are in
place, agencies are in a position to use
the standards to determine which
applicants will be able to perform at the
higher grade levels.
With respect to the comment that the
elimination of the time-in-grade
restriction will lead to ‘‘grade creep,’’ as
noted previously, managers are
obligated to make promotion decisions
based on an individual’s experience
and/or knowledge, skills, and abilities
relative to the qualification standard for
the position.
A number of commenters suggested
that agencies should use delegated
examining for identifying and
promoting individuals who do not meet
the time-in-grade requirement. This
suggestion is based on a
misunderstanding of examining
procedures. An agency announces a
vacancy using competitive examining
procedures to allow candidates from
outside the Federal workforce, current
Federal employees without civil service
status, and employees with civil service
status in other positions to compete for
the position. OPM has created
‘‘delegated examining’’ by entering into
written agreements with most agencies
authorizing them to conduct
competitive examining. If a current
Federal employee applies for a
promotion under competitive examining
procedures (typically through a vacancy
announcement stating it is open to the
general public), the employee does not
need to meet a time-in-grade
requirement.
In contrast, promotions filled under
the merit promotion procedures in 5
CFR part 335, are open to current or
former Federal employees who hold or
did hold a career or career-conditional
appointment in the competitive service.
If an eligible current Federal employee
applies for a position at a higher grade
through a merit promotion
announcement, the employee must meet
the time-in-grade requirement.
The decision to fill a position using
delegated examining or merit promotion
procedures rests with the agency filling
the position. If a current or former
Federal employee who holds or did
hold a career or career-conditional
appointment in the competitive service
wants to apply under both procedures,
E:\FR\FM\07NOR1.SGM
07NOR1
Federal Register / Vol. 73, No. 217 / Friday, November 7, 2008 / Rules and Regulations
pwalker on PROD1PC71 with RULES
the agency’s own policy determines
whether it will accept an application
under both methods. If the agency
allows the individual to apply only
through merit promotion procedures,
and the individual does not meet the
time-in-grade requirement (but is
otherwise qualified for the position), the
agency will not consider the individual.
Once the time-in-grade requirement is
eliminated, the agency may consider
otherwise qualified applicants who have
less than 52 weeks in grade, regardless
of the agency’s chosen recruitment
procedures.
One union commented that
elimination of TIG will lead to agencies
bidding against each other on the
establishment of a time-in-grade
requirement for promotion. Once TIG is
eliminated, agencies are not required to
implement their own TIG requirement.
Agencies will use qualification
standards for determining whether an
employee has met the specified criteria
needed for promotion to the next
highest grade level.
Effect on Within-Grade Increases
Some commenters expressed concerns
that elimination of the time-in-grade
requirement would result in a reduction
in the number of within-grade pay
increases. Based on the descriptions of
these concerns, we believe the
commenters are referring to General
Schedule (GS) within-grade increases
(WGIs) authorized by 5 U.S.C. 5335 and
5 CFR part 531, subpart D. It appears
there may be some confusion between
the time-in-grade restriction for
promotions and the waiting period for
GS WGIs.
To clarify, the rate range for each GS
grade has 10 step rates. WGIs or step
increases are periodic increases in a GS
employee’s rate of basic pay from one
step of the grade of his or her position
to the next higher step of that grade.
One of the requirements for earning a
WGI is that the employee must have
completed the required waiting period
for advancement to the next higher step.
For employees with a scheduled tour of
duty, the required waiting period is 52
weeks, 104 weeks, or 156 weeks of
creditable service, depending on the
employee’s current step. In contrast,
time in grade is the amount of time one
must stay at a particular grade
(regardless of the step) in order to be
eligible for promotion to the next higher
grade level. Eliminating the time-ingrade requirement does not affect
eligibility for WGIs.
Suggestions on OPM Actions
A number of commenters provided
suggestions regarding what OPM can do
VerDate Aug<31>2005
16:21 Nov 06, 2008
Jkt 217001
66159
to ensure fairness and equity in
promotions. Suggestions included
monitoring promotion rates for
Government employees, requiring
reports, and conducting random audits
of agencies. As mentioned earlier, OPM
will continue to monitor agency
promotion actions through our normal
oversight function. We do not believe
additional reporting requirements are
necessary.
One commenter suggested, as an
alternative to time-in-grade elimination,
that agencies give preference to
individuals who are eligible for time in
grade over those who are not eligible.
We are not adopting this suggestion.
Agency promotions are to be based on
merit, using government-wide and
agency-specific qualification standards.
Therefore, OPM will no longer require
that time in grade be considered in
selecting individuals for promotions.
Eliminating the time-in-grade restriction
from the selection process reinforces the
principle that promotions are based on
an individual’s ability to perform the
requirements of the position, i.e. merit,
and not the passage of time per se.
One commenter suggested, rather than
eliminating time in grade, that agencies
give incentives such as student loan
repayments, performance awards,
retention allowances, superior
qualification appointments, retention
allowances, flexiplace, and alternative
work schedules to reward employees.
We are not adopting this suggestion
because it is based on the mistaken
assumption that the items listed serve
the same purpose as the time-in-grade
requirement. TIG is an eligibility factor
for a promotion. The items listed by the
commenter, however, are recruitment
and retention tools that do not define
eligibility for promotion. Thus, use of
the items mentioned would not be
equivalent to eliminating the time-ingrade requirement.
the elimination of the TIG requirement,
supervisors will have some period of
time to observe their employees’
performance before recommending
promotion. Supervisors are encouraged
to motivate, develop, and prepare their
employees for promotions, without
regard to whether the employee is
subject to a time in grade requirement.
Time in Grade as an Observation
Period
One union suggested we keep the
time-in-grade-restriction as a period for
agencies to consider an employee’s
demonstrated ability to perform at the
next highest grade level, and to provide
supervisors with a time period during
which they can motivate, develop, and
prepare employees for promotion. As
previously noted, after the requirement
is eliminated, agencies will use
qualification standards to ensure that
candidates for promotion have
demonstrated the ability to perform at
the next highest grade level. In addition,
agencies will utilize their performance
management systems when considering
individuals for promotion. Even after
List of Subjects in 5 CFR Part 300
PO 00000
Frm 00017
Fmt 4700
Sfmt 4700
Impact on Payroll Costs
One agency, a professional
organization, several unions, and
several individuals commented that
elimination of the time-in-grade
restriction would result in increased
payroll costs for Federal agencies. This
comment assumes that elimination of
the time-in-grade requirement will
correlate with an increase in the number
promotions, thereby increasing payroll
costs. Whether such a correlation will
occur is merely speculative. Moreover,
even if such a correlation were to occur,
because the number of promotions is
not the only factor that determines
payroll costs, an increase in promotions
may not lead to a rise in overall payroll
costs. Payroll costs depend on a variety
of other factors, including collective
bargaining agreements and the agency’s
rate of attrition. Further, agencies are
presumed to use sound management
practices in making promotions,
including consideration of the financial
consequences of their decisions.
E.O. 12866, Regulatory Review
The Office of Management and Budget
has reviewed the final rule in
accordance with Executive Order 12866.
Regulatory Flexibility Act
I certify that this regulation will not
have a significant economic impact on
a substantial number of small entities
because it affects only certain Federal
employees.
Freedom of information, Government
employees, Reporting and
recordkeeping requirements, Selective
service system.
Office of Personnel Management.
Michael W. Hager,
Acting Director.
Accordingly, OPM is revising 5 CFR
part 300 to read as follows:
■
PART 300—EMPLOYMENT (GENERAL)
1. Revise the authority citation for part
300 to read as follows:
■
Authority: 5 U.S.C. 552, 3301, 3302; E.O.
10577, 3 CFR, 1954–1958 Comp., page 218,
unless otherwise noted.
E:\FR\FM\07NOR1.SGM
07NOR1
66160
Federal Register / Vol. 73, No. 217 / Friday, November 7, 2008 / Rules and Regulations
Secs. 300.101 through 300.104 also issued
under 5 U.S.C. 7201, 7204, 7701; E.O. 11478,
3 CFR, 1966–1970 Comp., page 803.
Sec. 300.301 also issued under 5 U.S.C.
1104 and 3341.
Secs. 300.401 through 300.408 also issued
under 5 U.S.C. 1302(c), 2301, and 2302.
Secs. 300.501 through 300.507 also issued
under 5 U.S.C. 1103(a)(5).
Subpart F—[Removed and Reserved]
2. Remove and reserve subpart F,
consisting of § 300.601 through
§ 300.606.
■
[FR Doc. E8–26559 Filed 11–6–08; 8:45 am]
BILLING CODE 6325–39–P
FEDERAL DEPOSIT INSURANCE
CORPORATION
12 CFR Part 370
RIN 3064–AD37
Temporary Liquidity Guarantee
Program
Federal Deposit Insurance
Corporation (FDIC).
ACTION: Amendment to the Interim Rule
with request for comments.
AGENCY:
SUMMARY: The FDIC is amending its
Interim Rule with Request for Comment
(Interim Rule) relating to
implementation of its Temporary
Liquidity Guarantee Program (TLG
Program) by extending the opt out date
for eligible entities until December 5,
2008; extending the deadline for
complying with certain disclosure
requirements related to the TLG
Program until December 19, 2008; and
establishing assessment procedures to
accommodate the extended opt out
period.
The Amended Interim Rule
becomes effective on November 4, 2008.
The effective date of § 370.5 paragraphs
(h)(2) and (h)(3), added at 73 FR 64186,
October 29, 2008, is delayed from
December 1, 2008 until December 19,
2008. The FDIC seeks general and
specific comments relating to questions
raised in both the Amended Interim
Rule and the Interim Rule. Comments
regarding both the Amended Interim
Rule and the Interim Rule must be
received by November 13, 2008.
ADDRESSES: You may submit comments
on the Amended Interim Rule by any of
the following methods:
• Agency Web Site: https://
www.FDIC.gov/regulations/laws/
federal/notices.html. Follow
instructions for submitting comments
on the Agency Web Site.
pwalker on PROD1PC71 with RULES
DATES:
VerDate Aug<31>2005
16:21 Nov 06, 2008
Jkt 217001
• E-mail: Comments@FDIC.gov.
Include RIN # 3064–AD37 on the
subject line of the message.
• Mail: Robert E. Feldman, Executive
Secretary, Attention: Comments, Federal
Deposit Insurance Corporation, 550 17th
Street, NW., Washington, DC 20429.
• Hand Delivery: Comments may be
hand delivered to the guard station at
the rear of the 550 17th Street Building
(located on F Street) on business days
between 7 a.m. and 5 p.m.
Instructions: All comments received
will be posted generally without change
to https://www.fdic.gov/regulations/laws/
federal/propose.html, including any
personal information provided.
FOR FURTHER INFORMATION CONTACT:
William V. Farrell, Manager,
Assessment Operations Section,
Division of Finance, (703) 562–6168 or
wfarrell@fdic.gov; Donna Saulnier,
Manager, Assessment Policy Section,
Division of Finance, (703) 562–6167 or
dsaulnier@fdic.gov; Richard Bogue,
Counsel, Legal Division, (202) 898–3726
or rbogue@fdic.gov; Robert Fick,
Counsel, Legal Division, (202) 898–8962
or rfick@fdic.gov; A. Ann Johnson,
Counsel, Legal Division, (202) 898–3573
or aajohnson@fdic.gov; Gail Patelunas,
Deputy Director, Division of Resolutions
and Receiverships, (202) 898–6779 or
gpatelunas@fdic.gov; John Corston,
Associate Director (Large Bank
Supervision), Division of Supervision
and Consumer Protection, (202) 898–
6548 or jcorston@fdic.gov; Serena L.
Owens, Associate Director, Supervision
and Applications Branch, Division of
Supervision and Consumer Protection,
(202) 898–8996 or sowens@fdic.gov.
SUPPLEMENTARY INFORMATION:
I. Background
The TLG Program was first
announced by the FDIC on October 14,
2008, as an initiative to counter the
current system-wide crisis in the
nation’s financial sector. It provided two
limited guarantee programs: One, that
guaranteed newly-issued senior
unsecured debt of insured depository
institutions and most U.S. holding
companies of such insured depository
institutions (the debt guarantee
program), and another, that guaranteed
certain noninterest-bearing transaction
accounts at insured depository
institutions (the transaction account
guarantee program).
The FDIC’s action in establishing the
TLG Program was preceded by a
determination of systemic risk by the
Secretary of the Treasury (after
consultation with the President),
following receipt of the written
recommendation of the Board on
PO 00000
Frm 00018
Fmt 4700
Sfmt 4700
October 13, 2008, along with a similar
written recommendation of the Board of
Governors of the Federal Reserve
System.
The recommendations and eventual
determination of systemic risk were
made in accordance with section
13(c)(4)(G) to the Federal Deposit
Insurance Act (FDI Act), 12 U.S.C.
1823(c)(4)(G). The determination of
systemic risk allowed the FDIC to take
certain actions to avoid or mitigate
serious adverse effects on economic
conditions and financial stability. The
FDIC believes that the TLG Program
promotes financial stability by
preserving confidence in the banking
system and encouraging liquidity in
order to ease lending to creditworthy
businesses and consumers. As a result,
on October 23, 2008, the FDIC’s Board
of Directors authorized publication in
the Federal Register and requested
comment regarding an Interim Rule
designed to implement the TLG
Program. The Interim Rule was
published on October 29, 2008.1 It
became effective on October 23, 2008,
with the exception of certain disclosure
requirements for which a delayed
effective date of December 1, 2008 was
established.2 The FDIC requested
comments regarding the Interim Rule by
November 13, 2008.
II. Opt Out Deadline in the Interim Rule
The Interim Rule provides that no
later than 11:59 p.m. Eastern Standard
Time (EST), on November 12, 2008,
each eligible entity 3 must inform the
FDIC if it desires to opt out of the debt
guarantee component or the transaction
account guarantee component (or both
components) of the TLG Program.4 If an
eligible entity opts out of the TLG
Program, coverage under the program
ends on the earlier of the date of the opt
out or on November 12, 2008.5
According to the Interim Rule, failure to
opt out by November 12, 2008
constitutes a decision on behalf of an
eligible entity to remain in the
1 73
FR 64179 (Oct. 29, 2008).
CFR 370.5(h)(2) and (h)(3).
3 12 CFR 370.2(a) defines ‘‘eligible entity’’ as any
of the following: (1) An insured depository
institution; (2) a U.S. bank holding company,
provided that it has at least one chartered and
operating insured depository institution within its
holding company structure; (3) a U.S. savings and
loan holding company, provided that it has at least
one chartered and operating insured depository
institution within its holding company structure; or
(4) other affiliates of insured depository institutions
that the FDIC after consultation with the
appropriate Federal banking agency, designate as
eligible entities which affiliates, by seeking and
obtaining such designation, will have opted in to
the debt guarantee program.
4 12 CFR 370.5(c).
5 12 CFR 370.5(a).
2 12
E:\FR\FM\07NOR1.SGM
07NOR1
]]>Agencies
[Federal Register Volume 73, Number 217 (Friday, November 7, 2008)]
[Rules and Regulations]
[Pages 66157-66160]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-26559]
-----------------------------------------------------------------------
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 300
RIN 3206-AL18
Time-in-Grade Rule Eliminated
AGENCY: Office of Personnel Management.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Office of Personnel Management (OPM) is eliminating the
time-in-grade restriction on advancement to competitive service
positions in the General Schedule. The rule eliminates the 52-week
time-in-grade requirement for promotions. Employees must continue to
meet occupational qualification standard requirements and any
additional job-related qualification requirements established for the
position.
DATES: The rule is effective March 9, 2009.
FOR FURTHER INFORMATION CONTACT: Ms. Janice Warren by telephone (202)
606-0960; by FAX (202) 606-2329; by TTY (202) 418-3134; or by e-mail
janice.warren@opm.gov.
SUPPLEMENTARY INFORMATION: On February 6, 2008, OPM published in the
Federal Register at 73 FR 6857 a proposal to eliminate the time-in-
grade (TIG) restriction found in 5 CFR part 300, subpart F. The
restriction applies to Federal employees in competitive service General
Schedule positions at grades 5 and above. These employees qualify for
promotions to higher grades if they have: (1) At least one year of
specialized experience equivalent in difficulty to the next lower grade
level or (in some cases) the equivalent education; and (2) service of
at least 52 weeks at their current grade (known as ``time in grade'').
The public comment period for the proposed regulation ended on
April 7, 2008. We received comments from seven agencies, five unions,
one national employee organization, and 33 individuals. We also
received 61 form letters from individuals. We carefully considered the
comments; as a result, we have decided to eliminate the time-in-grade
restriction. The final regulation will become effective 120 days after
the publication date of this notice in order to give agencies time to
amend policies and communicate changes to their human resources staff
and employees. Below is a discussion of the comments OPM received.
Comment Extension
The national employee organization and almost half of the form
letter commenters suggested extending the comment period because the
supplementary information accompanying the proposed rule provided
incorrect dates for OPM's prior proposals to eliminate the time-in-
grade restrictions. The February 6, 2008, proposal stated that OPM
published its prior proposals on June 14, 1995, and January 10, 1996.
In fact, they were published on June 15, 1994, and January 10, 1995.
However, the February 6, 2008 proposal provided correct citations to
the Federal Register notices for the prior proposals at 59 FR 30717 and
60 FR 2546, respectively.
We are not extending the comment period. OPM provided the dates and
citations for its previously-published proposals as background
information only. Potential commenters could adequately evaluate the
February 6, 2008 proposal without reviewing the prior proposals.
Moreover, the February 6, 2008 proposal supplied correct Federal
Register citations for both of the previously-published proposals,
thereby adequately facilitating their review by potential commenters.
Potential for Abuse and Favoritism
Many commenters stated that abolishing the time-in-grade
requirement would lead to abuse of a manager's promotion authority,
primarily because it would allow managers to promote their favorite
employees. These commenters believe that eliminating the time-in-grade
[[Page 66158]]
requirement will subject agencies to charges of disparate treatment,
and that the requirement ensures fairness and equity in promotions. One
commenter also thinks too many individuals will reach their full
performance levels in their positions too soon.
We disagree. The time-in-grade requirement is only one of the
requirements for eligibility for promotion. Managers must still select
only from those individuals who have at least one year of specialized
experience equivalent in difficulty to the next lower grade level or
(in some cases) the equivalent education. Moreover, individuals must
meet occupational qualification standard requirements and any
additional job-related qualification requirements established for the
position.
Further, since the advent of the merit system, Federal managers
always have possessed discretion to choose whom to promote. Managers
are presumed to act in good faith in making employment decisions. In
addition, there are safeguards in place to protect the merit system.
Section 2302, which enumerates prohibited personnel practices, defines
a personnel action as including a promotion, and enhances merit system
protections that have existed in various forms since the Nineteenth
Century.
When the time-in-grade restriction was first implemented,
procedures for redressing prohibited personnel practices had not yet
been enacted, and OPM's qualification standards did not exist.
Eliminating the time-in-grade restriction does not alter management's
responsibility to ensure that promotions are merit-based, and based on
an individual's relative knowledge, skills, and abilities for a
particular position.
In its oversight role, OPM will continue to review agency promotion
actions for adherence to applicable requirements and identify necessary
corrective actions.
The comment that the elimination of the time-in-grade requirement
will result in individuals reaching their full performance levels too
soon is merely speculative. The pace at which an employee advances to
the full performance level of his or her position is a function of the
employee's experience and/or knowledge, skills, and abilities relative
to the qualification standard for the position. Even after the
elimination of the time-in-grade restriction, qualification standards
will provide the basis for managers to determine whether a particular
employee is qualified for a promotion.
One individual commented that although safeguards against improper
promotions exist, these systems have proven to be ineffective in
responding to alleged violations and prescribing corrective or
disciplinary actions. OPM is not responding to this comment because the
efficacy of those safeguards is beyond the scope of these regulations.
Impact on Minorities and Veterans
Many commenters were concerned that eliminating the time-in-grade
requirement would have a negative impact on minorities and veterans.
There is no logical or factual basis for this concern. The time-in-
grade restriction applied to all individuals seeking promotion above
grade 5 to a competitive service position, without regard to whether
employees are minorities or veterans. Accordingly, eliminating the
restriction negates one of the requirements for advancement applicable
to all individuals, including minorities and veterans. In making
selections for promotions, managers and human resources staff continue
to be bound by applicable civil service laws and the laws pertaining to
equal employment opportunity.
Using Qualification Standards and Delegated Examining
A number of commenters questioned the use of qualification
standards as the sole determination for promotion. They expressed
concerns that qualification determinations will be subjective. Some
commenters also felt that using qualification standards will lead to
``grade creep.''
Agencies use qualification standards to ensure candidates for
promotion demonstrate at least one year or the appropriate level of
education as outlined in the OPM Operating Manual Qualification
Standards for General Schedule Positions (available on the OPM Web site
(https://www.opm.gov)). An individual may demonstrate the required
competencies (or knowledge, skills, and abilities) by paid or unpaid
experience. This includes experience gained through school, volunteer
work, military service, paid employment, or hobbies. Beyond the OPM
qualification standards, agencies have discretion to establish
additional requirements that employees must meet for promotions.
Examples include a specified level of performance achieved; possession
of specific job-related competencies (or knowledge, skills, and
abilities); and evidence of ability to perform higher-level duties.
Qualification standards are minimum requirements intended to
identify applicants who are likely to be able to perform successfully
on the job, and to screen out those who are unlikely to do so.
Qualification standards are only one element of a responsible human
resources management program. They are not designed to substitute for a
careful analysis of applicants' competencies (or knowledge, skills, and
abilities).
Before qualification standards were implemented, agencies relied on
time-in-grade to ensure that individuals were qualified for a higher-
graded position. Now that qualification standards are in place,
agencies are in a position to use the standards to determine which
applicants will be able to perform at the higher grade levels.
With respect to the comment that the elimination of the time-in-
grade restriction will lead to ``grade creep,'' as noted previously,
managers are obligated to make promotion decisions based on an
individual's experience and/or knowledge, skills, and abilities
relative to the qualification standard for the position.
A number of commenters suggested that agencies should use delegated
examining for identifying and promoting individuals who do not meet the
time-in-grade requirement. This suggestion is based on a
misunderstanding of examining procedures. An agency announces a vacancy
using competitive examining procedures to allow candidates from outside
the Federal workforce, current Federal employees without civil service
status, and employees with civil service status in other positions to
compete for the position. OPM has created ``delegated examining'' by
entering into written agreements with most agencies authorizing them to
conduct competitive examining. If a current Federal employee applies
for a promotion under competitive examining procedures (typically
through a vacancy announcement stating it is open to the general
public), the employee does not need to meet a time-in-grade
requirement.
In contrast, promotions filled under the merit promotion procedures
in 5 CFR part 335, are open to current or former Federal employees who
hold or did hold a career or career-conditional appointment in the
competitive service. If an eligible current Federal employee applies
for a position at a higher grade through a merit promotion
announcement, the employee must meet the time-in-grade requirement.
The decision to fill a position using delegated examining or merit
promotion procedures rests with the agency filling the position. If a
current or former Federal employee who holds or did hold a career or
career-conditional appointment in the competitive service wants to
apply under both procedures,
[[Page 66159]]
the agency's own policy determines whether it will accept an
application under both methods. If the agency allows the individual to
apply only through merit promotion procedures, and the individual does
not meet the time-in-grade requirement (but is otherwise qualified for
the position), the agency will not consider the individual. Once the
time-in-grade requirement is eliminated, the agency may consider
otherwise qualified applicants who have less than 52 weeks in grade,
regardless of the agency's chosen recruitment procedures.
One union commented that elimination of TIG will lead to agencies
bidding against each other on the establishment of a time-in-grade
requirement for promotion. Once TIG is eliminated, agencies are not
required to implement their own TIG requirement. Agencies will use
qualification standards for determining whether an employee has met the
specified criteria needed for promotion to the next highest grade
level.
Effect on Within-Grade Increases
Some commenters expressed concerns that elimination of the time-in-
grade requirement would result in a reduction in the number of within-
grade pay increases. Based on the descriptions of these concerns, we
believe the commenters are referring to General Schedule (GS) within-
grade increases (WGIs) authorized by 5 U.S.C. 5335 and 5 CFR part 531,
subpart D. It appears there may be some confusion between the time-in-
grade restriction for promotions and the waiting period for GS WGIs.
To clarify, the rate range for each GS grade has 10 step rates.
WGIs or step increases are periodic increases in a GS employee's rate
of basic pay from one step of the grade of his or her position to the
next higher step of that grade. One of the requirements for earning a
WGI is that the employee must have completed the required waiting
period for advancement to the next higher step. For employees with a
scheduled tour of duty, the required waiting period is 52 weeks, 104
weeks, or 156 weeks of creditable service, depending on the employee's
current step. In contrast, time in grade is the amount of time one must
stay at a particular grade (regardless of the step) in order to be
eligible for promotion to the next higher grade level. Eliminating the
time-in-grade requirement does not affect eligibility for WGIs.
Suggestions on OPM Actions
A number of commenters provided suggestions regarding what OPM can
do to ensure fairness and equity in promotions. Suggestions included
monitoring promotion rates for Government employees, requiring reports,
and conducting random audits of agencies. As mentioned earlier, OPM
will continue to monitor agency promotion actions through our normal
oversight function. We do not believe additional reporting requirements
are necessary.
One commenter suggested, as an alternative to time-in-grade
elimination, that agencies give preference to individuals who are
eligible for time in grade over those who are not eligible. We are not
adopting this suggestion. Agency promotions are to be based on merit,
using government-wide and agency-specific qualification standards.
Therefore, OPM will no longer require that time in grade be considered
in selecting individuals for promotions. Eliminating the time-in-grade
restriction from the selection process reinforces the principle that
promotions are based on an individual's ability to perform the
requirements of the position, i.e. merit, and not the passage of time
per se.
One commenter suggested, rather than eliminating time in grade,
that agencies give incentives such as student loan repayments,
performance awards, retention allowances, superior qualification
appointments, retention allowances, flexiplace, and alternative work
schedules to reward employees. We are not adopting this suggestion
because it is based on the mistaken assumption that the items listed
serve the same purpose as the time-in-grade requirement. TIG is an
eligibility factor for a promotion. The items listed by the commenter,
however, are recruitment and retention tools that do not define
eligibility for promotion. Thus, use of the items mentioned would not
be equivalent to eliminating the time-in-grade requirement.
Time in Grade as an Observation Period
One union suggested we keep the time-in-grade-restriction as a
period for agencies to consider an employee's demonstrated ability to
perform at the next highest grade level, and to provide supervisors
with a time period during which they can motivate, develop, and prepare
employees for promotion. As previously noted, after the requirement is
eliminated, agencies will use qualification standards to ensure that
candidates for promotion have demonstrated the ability to perform at
the next highest grade level. In addition, agencies will utilize their
performance management systems when considering individuals for
promotion. Even after the elimination of the TIG requirement,
supervisors will have some period of time to observe their employees'
performance before recommending promotion. Supervisors are encouraged
to motivate, develop, and prepare their employees for promotions,
without regard to whether the employee is subject to a time in grade
requirement.
Impact on Payroll Costs
One agency, a professional organization, several unions, and
several individuals commented that elimination of the time-in-grade
restriction would result in increased payroll costs for Federal
agencies. This comment assumes that elimination of the time-in-grade
requirement will correlate with an increase in the number promotions,
thereby increasing payroll costs. Whether such a correlation will occur
is merely speculative. Moreover, even if such a correlation were to
occur, because the number of promotions is not the only factor that
determines payroll costs, an increase in promotions may not lead to a
rise in overall payroll costs. Payroll costs depend on a variety of
other factors, including collective bargaining agreements and the
agency's rate of attrition. Further, agencies are presumed to use sound
management practices in making promotions, including consideration of
the financial consequences of their decisions.
E.O. 12866, Regulatory Review
The Office of Management and Budget has reviewed the final rule in
accordance with Executive Order 12866.
Regulatory Flexibility Act
I certify that this regulation will not have a significant economic
impact on a substantial number of small entities because it affects
only certain Federal employees.
List of Subjects in 5 CFR Part 300
Freedom of information, Government employees, Reporting and
recordkeeping requirements, Selective service system.
Office of Personnel Management.
Michael W. Hager,
Acting Director.
0
Accordingly, OPM is revising 5 CFR part 300 to read as follows:
PART 300--EMPLOYMENT (GENERAL)
0
1. Revise the authority citation for part 300 to read as follows:
Authority: 5 U.S.C. 552, 3301, 3302; E.O. 10577, 3 CFR, 1954-
1958 Comp., page 218, unless otherwise noted.
[[Page 66160]]
Secs. 300.101 through 300.104 also issued under 5 U.S.C. 7201,
7204, 7701; E.O. 11478, 3 CFR, 1966-1970 Comp., page 803.
Sec. 300.301 also issued under 5 U.S.C. 1104 and 3341.
Secs. 300.401 through 300.408 also issued under 5 U.S.C.
1302(c), 2301, and 2302.
Secs. 300.501 through 300.507 also issued under 5 U.S.C.
1103(a)(5).
Subpart F--[Removed and Reserved]
0
2. Remove and reserve subpart F, consisting of Sec. 300.601 through
Sec. 300.606.
[FR Doc. E8-26559 Filed 11-6-08; 8:45 am]
BILLING CODE 6325-39-P
