[Federal Register Volume 74, Number 153 (Tuesday, August 11, 2009)]
[Rules and Regulations]
[Pages 40057-40060]
From the Federal Register Online via the Government Printing 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further extended May 18, 2009, at 74 FR 23109, is withdrawn.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 
janice.warren@opm.gov.

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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