[Federal Register Volume 74, Number 153 (Tuesday, August 11, 2009)]
[Rules and Regulations]
[Pages 40057-40060]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-19174]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 74, No. 153 / Tuesday, August 11, 2009 /
Rules and Regulations
[[Page 40057]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 300
RIN 3206-AL18
Time-in-Grade Eliminated
AGENCY: Office of Personnel Management.
ACTION: Final rule; withdrawal.
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SUMMARY: The Office of Personnel Management (OPM) is withdrawing the
final rule, titled Time-in-Grade Elimination, published in the Federal
Register on November 7, 2008. After carefully considering all of the
comments OPM has determined that it would be more productive to
consider the merits of the time-in-grade issue as part of a more
comprehensive review of pay, performance, and staffing issues than to
regulate this particular issue in piecemeal fashion.
DATES: Effective August 11, 2009, the final rule published November 7,
2008, at 73 FR 66157, extended March 9, 2009, at 74 FR 9951, and
further extended May 18, 2009, at 74 FR 23109, is withdrawn.
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
[email protected].
SUPPLEMENTARY INFORMATION: On November 7, 2008 the U.S. Office of
Personnel Management (OPM) published in the Federal Register (73 FR
66157) a final rule eliminating the Time-in-Grade restriction on
advancement to competitive service positions in the General schedule.
This rule had an effective date of March 9, 2009.
On March 9, 2009 the U.S. Office of Personnel Management (OPM)
published a final rule in the Federal Register (74 FR 9951) extending
the March 9, 2009, effective date until May 18, 2009, and opening a new
public comment period. OPM provided this comment period to allow
interested parties to submit views on issues of law and policy raised
by the final rule published on November 7, 2008.
On May 11, 2009, OPM published in the Federal Register (74 FR
21771) a notice proposing to revoke the final rule and proposing to
further extend its effective date to August 16, 2009, with a request
for public comments on the merits of revoking, retaining, or amending
OPM's November 7, 2008 final rule and on the merits of extending the
effective date of the final rule pending the completion of the
rulemaking proceeding. On May 18, 2008, OPM published a final rule (74
FR 23109) extending the effective date of the final rule to August 16,
2009, and responding to public comments on the proposal to extend the
final date of the regulation.
The following is a discussion of the comments OPM received during
the two public comment periods raised in connection with the merits of
the final rule published on November 7, 2008.
Comments From the March 9, 2009 Federal Register Notice
OPM received 43 comments on issues of law and policy raised by the
final rule. These comments were provided by 37 individuals, three
employee organizations, and three federal agencies.
OPM received 11 comments from individuals who generally supported
retaining TIG rules.
We received 8 comments from individuals who generally supported
elimination of TIG rules.
One individual supported TIG elimination on the basis that
employees would still need one-year specialized experience in order to
be promoted.
Two individuals commented that the time-in-grade regulation is a
bad rule because it discriminates against highly-qualified, highly-
capable and highly-productive candidates on the basis of an arbitrary
time period.
Another individual, who generally supports TIG elimination,
expressed concern over the possibility of abuse by hiring managers if
the final rule were to go into effect. This person also questioned how
TIG elimination would protect against grade-leaping by employees.
Another individual expressed similar concern. This person noted
that although TIG elimination will provide some flexibility to agency
managers, the commenter was concerned that elimination of this rule may
encourage managers to abuse the system by promoting their favorite
employees. This responder suggested the need for creation of a
subjective factor to assist management with assessing performance and
promotions.
One individual commented that TIG elimination will allow the
Federal government to retain competent, capable and qualified
employees. This individual also suggested that TIG removal will
eliminate the possibilities of abuse and the `good old boy' promotions.
Another individual commented that the elimination of time-in-grade
will allow status candidates the ability to apply for higher graded
positions based on past experience.
One respondent believes that TIG rules should be eliminated in
order for competent and dedicated workers to be promoted to positions
with more responsibility than the positions these employees currently
occupy.
Another commenter supported TIG elimination on the basis that
qualified, productive individuals should not have to wait 52 weeks to
be promoted.
One individual commented that the elimination of time-in-grade
would be a win-win for the agencies.
Two employee organizations submitted similar comments expressing
the following views: Successful performance in a position for one year
is an extremely useful measure for determining whether to promote an
individual. With respect to promotions, both managers and employees
suffer from a process that is not transparent and objective and TIG
elimination will only add to this lack of transparency. Both
organizations questioned OPM's justification for abandoning a long-
standing practice of the competitive service. TIG elimination strips
managers of their defense against charges that unequal pay amounts are
based on race, gender, age or some other non-merit factors. Lastly,
both organizations expressed concern that TIG elimination may result in
agencies appointing people, who qualify for higher grade levels (e.g.,
General Schedule (GS) level 12), to positions at lower grade levels
[[Page 40058]]
(e.g., GS-5), and then promoting them quickly to the higher graded
position (e.g., GS-12) without competition. The net effect would be
these employees essential obtain the higher graded position (GS-12)
quickly based on competition at the lower graded position (GS-5).
Another employee organization commented that implementing the final
rule (i.e., TIG elimination) would create more problems than it could
solve because of the cost and time considerations needed to establish
and administer a replacement process which is transparent and
trustworthy and that contains a standardized waiting period that is
equitable and fair.
One commenter believes that TIG ensures competence and saves the
government money by preventing inexperienced employees the opportunity
to receive undeserved promotions; and it is risk that needs not be
taken.
One individual stated that TIG elimination would be a slap in the
face to all long serving Federal employees who had been subject to
these rules.
One individual commented that TIG elimination will increase the
power of the self-interested manager to build an entourage rather than
a competent workforce.
One individual commented that eliminating time-in-grade would cause
a deficit in trained and knowledgeable managers and a short and long-
term detrimental impact on agency's missions.
The same individual stated the one-year requirement is not long
enough for an employee to gain the knowledge or technical skills needed
for promotion and that, eliminating time-in-grade will open the flood
gates to more unqualified employees being promoted.
The same person suggested TIG elimination may lead to the
possibility of abuse and misuse and to experienced employees being
overlooked for promotions (or even dismissed) because they lacked the
wrong connections necessary to obtain a promotion.
Another individual supported TIG elimination only if OPM developed
a watchdog element or a randomly select ad-hoc group which investigated
promotions.
One respondent believes TIG elimination will have no net effect on
an individual's chances for promotion as long as the requirement for
one-year of specialized experience remains in tact. This individual
questioned the logic in eliminating an objective measure (TIG) in favor
of a subjective one (specialized experience).
Beyond the Scope
One agency commented that OPM should give agencies advanced notice
and adequate time to implement and modify merit promotion procedures so
that agencies can notify employee unions as well as provide training
before the implementation date.
The same agency and a another federal agency suggested that OPM
clarify whether agencies will continue to have the option of imposing
agency-specific TIG requirements after the November 7, 2008 final rule
becomes effective (i.e., after TIG is eliminated).
One of these agencies also commented that OPM provide clear and
timely policy guidance on transitioning this change.
Another agency suggested OPM provide guidance on a variety of
topics in the event that TIG is eliminated. These topics include: How
to credit experience, whether TIG removal applies to career ladder
positions, whether employees in career ladder positions may skip grade
levels, and whether there are any limitations on movement within career
ladder positions.
Two employee organizations noted that seniority is a widely
accepted explanation by the courts and other federal agencies to
justify the difference in pay for equally qualified employees.
The same two entities suggested OPM consult with stakeholders and
provide sufficient training and objective measures for a fair and
transparent process before eliminating time-in-grade.
One individual submitted a statement describing his personal
experience with time-in-grade requirements, but not commenting on the
rule.
Another individual commending the administration for proposing to
eliminate time-in-grade, however this comment was made in reference to
a demonstration project authority which is not subject to time-in-grade
restrictions.
Comments From the May 11, 2009 Federal Register Notice
OPM received comments from 154 individuals, 3 employee
organizations, and 2 federal agencies on the merits of retaining,
revoking, or amending the final rule.
Retaining Time-in-Grade
OPM received 33 comments on retaining the time-in-grade regulation.
These comments were provided by thirty two individuals and one national
employee organization.
The national employee organization suggested that eliminating time-
in-grade will cause low employee morale and lead to confusion. This
entity commented that the time-in-grade regulation provides a tool for
eligibility that eliminates capriciousness, favoritism, prejudice or
bias.
Sixteen individuals commented generally that time-in-grade should
be retained.
One individual suggested TIG elimination will stress agencies'
budgets and place added burdens on supervisors to promote employees
sooner than otherwise would be the case.
Seven individuals commented on the need for a mechanism to ensure
fair recruitment and placement. These respondents indicated that TIG
elimination would provide management with a tool to use favoritism to
select or promote employees based on personal choices.
One individual commented that TIG elimination may result in
increased litigation for the Equal Employment Opportunity Commission,
federal agencies, and employee unions.
One individual commented the elimination of time-in-grade would put
a huge burden on human resources, and that keeping time-in-grade
restrictions would eliminate rapid advancements.
One individual suggested that elimination of time-in-grade will
lead to disproportionate control on the part of employees regarding
their opportunities for promotion.
One individual commented that elimination of time-in-grade would
result in a popularity contest, and therefore abuse by management, to
determine which employees receive promotions.
One individual commented that TIG elimination would cause continued
recruitment of inexperienced people and provide management an
opportunity to promote their favorite high performer.
One individual suggested that TIG elimination would lead to
imbalances within an agency's workforce (due to increased promotions)
and that TIG removal would only benefit newly hired employees.
One individual suggested that TIG elimination will lead to and
justify abuses by management.
One individual commented that TIG elimination would erode Federal
employee's faith in their human resources promotion policy.
Revoking Time-in-Grade
OPM received 107 comments on the merits of revoking the time-in-
grade regulation. These comments were provided by 106 individuals, and
1 federal agency.
[[Page 40059]]
Sixty-seven individuals commented generally that TIG should be
revoked.
One agency commented that the elimination of time-in-grade will
allow the federal government to compete with private industry, decrease
stagnation of talent, enhance succession planning efforts, and free-up
management to become mentors.
Four individuals commented that employees should be rewarded
(promoted) based on performance, and that the passage of time has
nothing to do with an individual's contribution to his or her agency.
Four individuals commented that time-in-grade is an arbitrary and
outdated time period. These individuals also believed that favoritism
in promotions currently exists and that TIG removal would give managers
additional flexibility to promote their staff without any additional
impropriety.
Five individuals commented that time-in-grade holds back young
professionals, and causes qualified individuals to leave Federal
service.
One individual questioned whether a 52-week period was necessary in
order to determine an individual's readiness for promotion. This
individual believed that because of TIG, agencies run the risk of
losing good people.
Four individuals commented that TIG elimination (or modification)
is needed to improve agency mission readiness and reduce overtime cost
associated with maintaining a daily workforce.
Two individuals commented that time-in-grade is a form of
discrimination.
Three individuals commented that TIG penalizes hard working
employees who perform well in their jobs.
One individual commented that TIG elimination would remove
protectionist language which favors entrenched federal employees.
One individual commented that the time-in-grade regulation serves
as a recruitment disincentive which may cause Federal agencies to miss
out on hiring skilled talent. This individual also stated that TIG
creates unnecessary human capital cost.
One individual suggested that TIG punishes loyal Federal employees
at the expense of recent hires from the private sector.
One individual commented that the elimination of time-in-grade
would afford greater flexibility for the federal managers.
Another individual questioned the ethics of applying a TIG standard
to hard working employees.
One individual stated that the current time-in-grade rules limit
opportunities and incentives for internal employees, veterans, and
applicants with educational qualifications.
Two individuals commented that the federal government needs to
modernize the promotion processes in order to attract and retain
talent; and that talented federal employees should be able to move up
the grade scale at a quicker pace than the rules currently allow.
One individual believes that TIG elimination would contribute to a
smarter more productive Federal workforce.
One individual believes the existence of TIG results in applicants
having to accept lower-graded positions than those for which they are
otherwise qualified.
One individual commented that TIG elimination would place all
employees on a leveled playing field with respect to promotions.
Another individual suggested that TIG elimination would contribute
to greater diversity among the Federal workforce.
Three individuals commented that TIG negatively impacts underpaid
employees.
One person believes TIG rules encourage mediocrity among federal
employees. This individual suggested that TIG provides a disincentive
against hard work because the standards for promotion are the same for
hard-working and non-hardworking employees.
One Individual commented that the TIG rules unfairly penalize
employees with previous work experience who may otherwise be promoted
on the basis of that experience in the absence of the 52-week
requirement.
One person commented that TIG elimination makes good business sense
and may support the notion that the best worker gets hired (promoted).
Amending Time-in-Grade
OPM received 9 comments on the merits of amending the time-in-grade
regulation. These comments were provided by six individuals and two
employee organizations.
One employee organization suggested OPM revise the time-in-grade
regulation to allow for filling positions at the ``target grade'' for
individuals that are fully qualified.
Another national employee organization suggested that OPM consider
a TIG exclusion for positions directly tied to ensuring public safety.
One individual suggested that OPM develop a formula to ensure
employees could get promoted after 52 weeks of Federal service.
One individual suggested OPM amend the TIG rules to allow for
temporary promotion.
One individual suggested OPM conduct an overhaul of the TIG rules
to better meet the needs of agencies and employee. This individual also
believes the current system will induce increased numbers of federal
government employees to migrate to jobs in private industry.
Two individuals suggested TIG needs to be re-evaluated and modified
so that employees of the government will not be penalized for accepting
lower graded positions.
One individual commented that OPM need to eliminate time-in-grade
for GS-13, 14 and 15 grade levels.
Another individual suggested that OPM consider whether a 1-year TIG
period provides enough time for managers to determine an employee's
readiness for promotion.
Beyond the Scope
OPM received 6 comments which were beyond the scope of the merits
of TIG retention, revocation, or amendment. These comments were
provided by five individuals and one federal agency.
The agency suggested that OPM provide agencies with advanced
notification prior to implementing TIG elimination. This notification
is necessary so that agencies will have adequate time to modify merit
promotion procedures, notify employee unions, and provide training
before the implementation date.
The same agency commented that OPM needs to clarify, if TIG is
eliminated, whether an agency will still have the option to impose a
TIG requirement at its discretion.
The same agency also commented that OPM provide clear and timely
policy guidance on transitioning to TIG elimination.
Two individual commented that it is detrimental that the government
promote internally.
One individual objected to extending and applying TIG requirements
for employees covered under the National Security Personnel System.
One individual suggested OPM revise the qualification requirement
for TIG.
One individual commented on the pay-for-performance system and the
importance of funding and involving Federal supervisors.
OPM carefully considered the comments we received during each of
these comment periods, which reflected a variety of views. As a result,
we have decided to withdraw the elimination of time-in-grade regulation
that was
[[Page 40060]]
published in the Federal Register on November 7, 2008. After carefully
considering all of the comments, OPM has determined that it would be
more productive to consider the merits of the time-in-grade issue as
part of a more comprehensive review of pay, performance, and staffing
issue that OPM and the Administration are conducting in various
contexts than to regulate one isolated issue in a piecemeal fashion.
This means that the TIG rules remain in effect.
Office of Personnel Management.
John Berry,
Director.
[FR Doc. E9-19174 Filed 8-10-09; 8:45 am]
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