[Federal Register Volume 82, Number 12 (Thursday, January 19, 2017)]
[Proposed Rules]
[Pages 6339-6353]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-01326]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 /
Proposed Rules
[[Page 6339]]
Office of Personnel Management
5 CFR Parts 317, 430, and 534
Office of Management and Budget
5 CFR Part 1330
RIN 3206-AL20
Performance Appraisal System Certification
AGENCY: Office of Personnel Management and Office of Management and
Budget.
ACTION: Proposed rule with request for comments.
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SUMMARY: The U.S. Office of Personnel Management (OPM) and the U.S.
Office of Management and Budget (OMB) jointly propose to implement
certain requirements contained in the Senior Professional Performance
Act of 2008, incorporate OPM policies and to reorganize information for
ease of reading. OPM additionally proposes to make conforming changes
and technical corrections, and to update and simplify the processes
used based on over a decade of experience with the certification
process and recommendations from an interagency workgroup.
DATES: OPM must receive comments on or before February 21, 2017.
ADDRESSES: You may submit comments, identified by ``RIN 3206-AL20,''
using any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov. Follow the
instructions for submitting comments. All submissions received through
the Portal must include the agency name and docket number or Regulation
Identifier Number (RIN) for this rulemaking.
Email: [email protected]. Include ``RIN 3206-AL20'' in the subject
line of the message.
Fax: (202) 606-4264.
Mail, Hand Deliver/Courier comments: Address comments to Mr.
Stephen T. Shih, Deputy Associate Director for Senior Executive
Services and Performance Management, Suite 7412, 1900 E Street NW.,
Washington, DC 20415-9700.
FOR FURTHER INFORMATION CONTACT: Myriam Mayobre by telephone at (202)
606-8046, by FAX at (202) 606-4264, or by email at
[email protected].
SUPPLEMENTARY INFORMATION: This proposal updates current regulations to
account for changes in statute, policies, and processes that have
occurred since the current regulation became effective in 2004. This
proposal also streamlines the existing process to decrease burden on
agencies while ensuring OPM and OMB have information needed for
certification.
On October 8, 2008, the President signed into law the Senior
Professional Performance Act of 2008 (the Act), Public Law 110-372. The
Act made significant changes in the law governing certification of
senior employee performance appraisal systems. This rulemaking would
revise subpart D of parts 430 and 1330 of title 5, Code of Federal
Regulations to reflect the changes resulting from the Act. Other
changes to the regulations not related to the Act have been included in
this revision to update and simplify the processes used based on over a
decade of experience with the certification process and recommendations
from an interagency workgroup. OPM convened the workgroup in December
2014 as a result of a President's Management Agenda recommendation made
in 2011 by a separate workgroup, to follow up on recommendations made
by a Chief Human Capital Officers workgroup held in February 2014, and
as part of the current Presidential Management Agenda initiatives to
improve the Senior Executive Service (SES). The workgroup was comprised
of agency subject matter experts who were tasked to review the
certification process and provide recommendations regarding the
certification criteria and streamlining the process.
While OPM and OMB jointly propose to amend parts 430 and 1330 of
title 5, Code of Federal Regulations, OPM additionally proposes to make
the following changes to parts 317, 430 Subpart C, and 534 of title 5,
Code of Federal Regulations, for which OPM alone is responsible. OPM
proposes changes in 5 CFR 317.501(b)(2) and 317.503(g)(3) to fix
erroneous internal cross-references to certain regulations affecting
those sections. OPM also proposes certain changes to final regulations
on 5 CFR 430 subpart C--Managing Senior Executive Performance published
September 25, 2015, 80 FR 57693 to update citations to the proposed
regulation. Revisions to 5 CFR 430.309(e)(2) would further clarify
higher level review.
OPM is proposing conforming changes to pay regulations at 5 CFR 534
subparts D and E. For the most part, these changes update citations
from the current regulations with citations to the same or similar
material in the proposed regulations or change the existing references
in current regulation to ``suspension'' of an appraisal system
certification with the term ``termination'' of certification. In 5 CFR
534 subpart D, OPM also proposes to revise 5 CFR 534.404(e)(1) to
clarify that certification of an appraisal system does not provide an
immediate opportunity to adjust the pay of current senior executives.
Rather, pay adjustments for current senior executives must be based on
an annual summary rating and, therefore, occur only after the
completion of a rating cycle under the newly certified appraisal
system. This should occur on the normal appraisal cycle and include a
period of performance under the certified system that is at least equal
to the agency's minimum appraisal period. OPM also proposes to add new
paragraph 534.404(c)(6) to address a technical issue associated with
the 12-month rule and enable authorized agency officials to grant a pay
adjustment up to 2 days before the expiration date of the 12-month
restriction on pay adjustments that applies to a senior executive. This
will allow agencies to make a pay adjustment consistent with an
otherwise applicable annual performance and pay adjustment cycle. OPM
finds this appropriate to support agencies in maintaining a cycle that
provides for granting pay adjustments based upon performance on the
first day of the same bi-weekly pay period each year (e.g., at the time
of the statutory annual adjustment to General Schedule rates, which may
occur 1 or 2 days short of a full 12-month period). OPM does not
propose to require annual approval and documentation of the basis for
this exception prior to its use. In 5 CFR 534 subpart E, OPM proposes
to revise 5
[[Page 6340]]
CFR 534.505(a)(5) to add the review of proposed performance awards for
senior professionals as a responsibility of the centralized review
panel. This creates consistency with the duties of the performance
review boards (PRB) for senior executives. OPM also proposes to revise
5 CFR 534.507(a)(2) to include a 14-day time period from the date
specified in paragraph (a)(1) of that section in which an authorized
agency official must provide notice to a senior professional concerning
the reasons for a zero adjustment in pay, as required by paragraph (h)
of that section. Specifying a 14-day time period will ensure that
senior professionals receive such notices in a timely manner.
Key Changes to 5 CFR Parts 430 and 1330
The proposed regulations implement the provision in the Act that
authorizes agencies to apply higher maximum rates of basic pay for
employees in senior-level (SL) and scientific or professional (ST)
positions (i.e., senior professionals) paid under 5 U.S.C. 5376. An
agency without an applicable certified appraisal system must use a
maximum rate of basic pay for senior professionals that does not exceed
the rate for level III of the Executive Schedule (EX-III). An agency
with an applicable certified appraisal system may use a maximum rate of
basic pay for senior professionals covered by the certified system that
does not exceed the rate for level II of the Executive Schedule (EX-
II).
The proposed regulation implements a section of the Act providing
that certification may be granted beginning at any point in the year
for a period not to exceed 24 months. Under rare and exceptional
circumstances, the Director of OPM may extend certification for up to 6
additional months. Full certification will be granted for a period of
24 months. Provisional certification will be granted for a period of 12
months.
Since certification no longer expires at the end of a calendar
year, there is no need for OPM to extend provisional certification into
the following calendar year. That extension enabled agencies to
maintain certification long enough to make pay adjustments using the
higher maximum rate of the newly adjusted pay range and continued their
access to the higher pay rate of EX-II.
OPM proposes to remove sections of the regulation that governed the
renewal of an already fully certified system and described a process
for automatic renewal based on an OPM/OMB review of the required agency
annual report. OPM determined that this information alone is
insufficient to assess whether an agency's system continues to meet the
certification criteria. An agency that intends to maintain its
certification must submit a request for certification in accordance
with proposed sections 430.407 and 1330.407.
OPM proposes to change the requirement of current sections
430.404(a)(6) and 1330.404(a)(6) that only the agency head or the
official designated under paragraph (a)(5) of those sections may
provide oversight of the agency's appraisal system and its results. The
proposed regulations also add Communication of Results (i.e., overall
rating distributions, average adjustment in the rate of basic pay for
each rating level, and average performance award for each rating level,
as applicable) as a certification criterion. This change is consistent
with OPM's current guidance that each agency must describe the
communication of ratings and payouts to senior employees and other
involved officials in its certification request. Additionally, the
proposed regulations combine the criteria for Alignment and Results
into a single criterion, Aligned Results.
OPM proposes to remove the references that distinguish requests for
full certification from requests for provisional certification. As the
certification process has evolved, OPM has found that submission of the
same information is needed for all agency requests for certification.
Based on review of an agency request, OPM, with OMB concurrence, may
then grant full or provisional certification as appropriate. Reasons
for which an agency would receive provisional rather than full
certification are specified in the proposed regulations. OPM also
proposes to remove the requirement for agencies to submit, as part of
their certification requests, the process they use for ensuring ratings
are not distributed arbitrarily or on a rotational basis. OPM believes
this falls within the responsibilities of the oversight official to
ensure the appraisal system is administered appropriately. OPM
continues to require, as part of the oversight criterion, that an
agency identify the official responsible for certifying that the senior
employee appraisal process makes meaningful distinctions based on
relative performance. OPM recognizes the ability to make meaningful
distinctions in performance starts with the development of performance
standards and requirements that clearly describe the different
expectations at various performance levels. Agencies should consult
their strategic plans and objectives when developing performance
requirements to ensure alignment with mission outcomes and
organizational results. This first critical step falls to the rating
official, in consultation with the senior employee, followed by the
accurate application of these standards/requirements when assessing
performance. The proper development of performance standards/
requirements and the accurate assessment of performance compared to
these standards/requirements should lead to meaningful distinctions in
ratings. OPM has found that the role of the oversight official provides
the appropriate level for ensuring ratings make meaningful distinctions
on the basis of actual differences in levels of performance.
Furthermore, OPM proposes to remove the requirement for an agency to
submit, as part of its certification request, the process for reviewing
performance standards, requirements, expectations, or ratings of
employees supervised by senior employees, because OPM believes this too
is a review that should be included in the responsibilities of the
Oversight Official.
The proposed regulations introduce a new procedural framework that
provides for shared responsibilities in assessing certification
criteria. Instead of OPM assessing all criteria, OPM will assess
Aligned Results, Performance Distinctions, and Pay Differentiation. OPM
will seek OMB concurrence on its findings. Agencies will verify
Organizational Assessment and Guidelines, Oversight, and Communication.
The criteria verified by the agency will, however, be subject to
periodic spot checks by OPM to ensure continued compliance. Spot checks
will not be announced in advance and when they occur, agencies will
submit to OPM the documentation they used as the basis of their
verification of the applicable criteria. In addition, the proposed
regulations allow for an agency to demonstrate compliance with the
Aligned Results criterion through a peer review process. This peer
review process will provide the option for an agency with full
certification to either have its performance plans reviewed by another
agency with a fully certified appraisal system or submit the
performance plans to OPM. Agencies that maintain full certification may
continuously use this peer review method to demonstrate compliance with
the Aligned Results criterion subject to spot checks by OPM. To
maintain the integrity of the peer review process, agencies will not be
allowed to conduct reciprocal reviews.
OPM proposes to remove Consultation, Balance, and Accountability
criteria from the
[[Page 6341]]
Certification Criteria and move them to a new section, Additional
Appraisal Program Requirements and add the Training requirement to this
same section. Based on over a decade of experience and careful
deliberation by a cross-agency working group of subject matter experts,
we have determined these important aspects of a successful and
effective performance management system no longer need to be reviewed
by OPM for the purpose of supporting a certification determination.
Since they are vital to the success of a performance management system,
are included in the design and application of the Basic SES appraisal
system, and agencies already have incorporated them into their
performance cultures, each agency will now be responsible for ensuring
they continue to be properly applied within their organizations.
OPM proposes to modify the definition of Relative Performance to
clarify that a senior employee's performance is compared to the
performance expectations established for his or her position, including
their contribution to agency performance as appropriate. The definition
of Relative Performance also specifies that it does not permit peer
ranking or peer comparison for rating purposes. OPM also proposes to
remove Outstanding Performance from the definitions to avoid confusion
with the commonly used Level 5 rating label--Outstanding. As used in
the certification regulations, Outstanding Performance originally was
intended to allow for separately identifying the highest performers
even within the highest performance level, usually Level 5, which often
uses the label Outstanding. Some additional terms have been defined, as
noted in the table of changes. OPM also proposes to revise the title of
this subpart from Performance Appraisal Certification for Pay Purposes
to Performance Appraisal System Certification for accuracy.
Agencies will also be required to submit, as part of the
certification request, the applicable agency SES or SL/ST pay setting
and adjustment policy required under 5 CFR part 534 and the policy and
procedures for granting performance awards under Sec. 534.405 for SES
or Sec. Sec. 451.101(e) and 451.104(a)(3) for SL/ST. In order to
assess whether an agency is meeting the pay differentiation criterion
for certification, OPM often finds it necessary to examine the pay
policy to understand the context within which the reported pay
adjustments have been authorized and performance awards have been
granted. OPM also proposes that agencies make pay adjustments and
performance awards for senior employees in a timely manner. These pay
adjustments and awards for SES must have an effective date no later
than 5 months after the end of the applicable appraisal period. For
senior professionals, agencies must make pay adjustments, in compliance
with requirements in Sec. 534.505(b), at the same time as the
adjustment to the General Schedule. This is the only time during the
year annual increases in basic pay for senior professionals are
permissible. Performance awards must be paid as soon as practicable
after the end of the appraisal period. These timeliness requirements
support the principles of performance-based compensation by ensuring
the pay and awards are as close as practicable to the ratings upon
which they are based.
OPM proposes to remove paragraphs addressing the limits on basic
pay and aggregate total compensation because they are contained in 5
CFR part 534, subparts D and E and Sec. 530.203(b) respectively.
Summary of Major Changes
These proposed regulations make the following major changes:
1. Proposed revisions make conforming changes as a result of Public
Law 110-372, Senior Professional Performance Act of 2008.
Adds that an agency with an applicable certified appraisal
system may apply the higher maximum rate of basic pay for senior
professionals covered by the certified system.
Implements the provision of the Act where certification
may be granted beginning at any point in the year for a period not to
exceed 24 months as opposed to a calendar-year basis.
2. Proposed revisions address recommendations stemming from over a
decade of experience with certification as well as from an interagency
work group tasked to design an improved certification process to
support the President's Management Agenda recommendation to improve the
SES.
Provides for shared responsibilities in assessing
certification criteria in which OPM assesses Aligned Results,
Performance Distinctions, and Pay Differentiation and agencies will
verify all other criteria.
Adds new option for Peer Review--this would allow fully
certified agencies to engage in a review of other fully certified
agencies' performance plans to determine whether they meet the
criterion for ``Aligned Results,'' while prohibiting concurrent
reciprocal reviews.
Requires timely pay adjustments and performance awards for
senior employees; for SES, not later than 5 months after the end of the
appraisal period.
Request for Comments
In addition to the general request for comments on the proposed
regulation, we would appreciate feedback focused specifically on the
following questions:
How could agencies best assess and highlight their
organizational performance--strengthening alignment to individual SES
performance requirements--to distinguish between SES performance levels
and/or to objectively set high performance expectations for individual
SES?
Are there additional ways, or alternatives, OMB and OPM
should consider to make the SES and SL/ST performance appraisal system
certification process less resource-intensive, while still achieving
the goal of tying performance to agency outcomes, and making meaningful
distinctions amongst individuals' performance levels?
Complete Table of Changes
The following table lists all the proposed changes to the current
regulations. The ``current rule'' column lists the regulations in the
current subpart D. The ``proposed rule'' column indicates where matters
addressed in the current regulation are addressed in the proposed
regulation and where new material is being added. The third column
explains each change.
------------------------------------------------------------------------
Current rule Proposed rule Explanation of change
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Part 430, subpart D
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430.401(a).................... 430.401(a) and Divides paragraph
(b). into multiple
sections to increase
clarity.
430.401(b).................... Removed.......... Removes paragraphs
addressing the
limits on basic pay
and aggregate
compensation because
they are contained
in 5 CFR part 534,
subparts D and E and
Sec. 530.203(b)
respectively.
[[Page 6342]]
430.402....................... 430.402.......... Adds definitions for
Agency, Agency Head,
Annual Summary
Rating, Appraisal,
Certification
Criteria, Peer
Review, Rating of
Record, Senior
Professional Review
Panel (SPRP),
updates GPRA to
GPRAMA, clarifies
the definitions of
Performance
Expectations,
Relative
Performance, and
Senior Executive.
Removes the
definition for
Outstanding
Performance.
430.403(a).................... 430.403(a)....... Edits made to
increase clarity.
430.403(b)....... Adds provision that
certifications are
not renewable.
430.403(b).................... 430.403(c)....... Moves requirement
that agencies
seeking
certification must
submit systems that
have been approved
by OPM.
430.403(c).................... Removed.......... Removes option for
agencies to submit a
new appraisal
system(s) for
certification that
has not yet been
approved by OPM.
430.403(d).................... 430.403(e)....... Moves requirement
that agencies submit
for certification,
separate systems for
their senior
professionals and
SES members. Adds
new requirement for
a centralized review
panel for agencies
with 10 or more
senior
professionals. Also
moves the option to
include features in
the senior
professional
appraisal system
that are similar to
the SES system.
430.403(e).................... 430.403(c) and Splits paragraph into
(d). two sections.
430.404(a).................... 430.404.......... Edits made to
increase clarity.
430.404(a)(1)................. 430.404(a)(1).... Moves certification
criterion and
changes name from
Alignment to Aligned
Results.
430.404(a)(2)................. 430.406(a)....... Moves to Additional
Appraisal System
Requirements and
clarifies.
430.404(a)(3)................. 430.404(a)(2).... Moves certification
criterion and
changes name from
Results to Aligned
Results.
430.404(a)(3).... New provision
allowing for peer
review of aligned
results.
430.404(a)(4)................. 430.406(b)....... Moves to Additional
Appraisal System
Requirements and
clarifies.
430.404(a)(5)................. 430.405(a)....... Moves certification
criterion and
simplifies.
430.404(a)(6)................. 430.405(b)....... Moves certification
criterion and
clarifies.
430.404(a)(7)................. 430.406(c)....... Moves to Additional
Appraisal System
Requirements,
changes name from
Accountability to
Accountability for
the Performance
Management of
Subordinates, and
clarifies.
430.404(a)(8)................. 430.404(b)(2).... Moves the
certification
criterion, changes
the name from
Performance
Differentiation to
Performance
Distinctions, and
simplifies.
430.404(a)(9)................. 430.404(c)(1) and Moves certification
(2). criterion and
clarifies.
430.404(c)(3).... Adds specific
timeframe for making
pay adjustments and
awards in a timely
manner.
430.404(a)(9)................. 430.404(c)(4).... Moves certification
criterion and
clarifies
transparency in the
process for making
pay and awards
decisions.
430.404(b).................... Removed.......... Addressed by defining
agency head to mean
an Inspector General
when applying these
provisions to
Offices of the
Inspector General.
430.405(c)....... Adds Communication of
Results as a
certification
criterion.
430.406(d)....... Adds Training to
Additional Appraisal
System Requirements.
430.405.......... Adds new section
titled Certification
Criteria Verified by
the Agency.
430.405(a).................... 430.407.......... Moves and clarifies.
430.405(b).................... 430.407(a)....... Moves and removes the
requirement to
identify whether the
request is for full
or provisional
certification.
Removes requests
covering an
agencywide system or
a system that
applies to one or
more agency
organizations or
components.
Specifies who must
submit certification
requests.
430.405(b)(1)................. 430.407(a)(1).... Moves and remains
unchanged.
430.407(a)(2).... Adds new paragraph
explicitly requiring
separate
certification
requests for Offices
of Inspectors
General.
430.405(b)(1)(i).............. 430.407(a)(3)(i). Moves and remains
unchanged.
430.405(b)(1)(ii)............. Removed.......... Removes applicable
administrative
instructions and
implementing
guidance from
written requests for
certification.
430.405(b)(1)(iii)............ 430.407(a)(3)(ii) Moves and edits made
to increase clarity.
430.405(b)(1)(iii)(A) and (B). 430.404(b)(1).... Moves and clarifies.
430.404(b)(3).... Adds provision
requiring agencies
to appropriately
assign the highest
ratings to the best
performers.
430.405(b)(1)(iii)(C)......... 430.404(b)(4).... Moves and replaces
Outstanding
Performance with the
highest level of
performance.
430.405(b)(2)................. Removed.......... Removes requirement
to submit a clearly
defined process for
reviewing initial
ratings as well as
the requirement to
submit a review of
supervised
employees'
performance
standards,
requirements, and
ratings.
430.405(b)(3)................. 430.407.......... Moves and simplifies.
430.405(b)(3)(i) and (ii)..... Removed.......... Removes distinction
between requirements
associated with full
and provisional
certification
requests.
430.407(a)(4).... New requirement to
include a sample of
performance plans.
430.407(a)(5).... New requirement to
include
documentation of
organizational
performance results
and relationship
with ratings
distribution.
[[Page 6343]]
430.405(b)(4)................. 430.407(a)(6) and Moves and references
(7). the annual reporting
requirement. Moves
references to full
certification and
the two appraisal
periods, by
requiring data
reported in the
annual data call.
430.407(a)(7).... New requirement to
submit documentation
of the pay policy
and procedures as
well as policies
established for
awards programs.
430.405(b)(5)................. 430.407(a)(8).... Moves and remains
unchanged.
430.407(b)....... Requires agencies
participating in
peer review to
submit such
documentation as OPM
requires.
430.405(c).................... 430.408(a)....... Moves and simplifies.
430.405(c)(1)................. 430.408(a)(1).... Moves, redefines the
certification period
from 2 calendar
years to 24 months,
and clarifies the
requirements for
full certification.
430.405(c)(2)................. 430.408(a)(2).... Moves, deletes the
option for OPM to
extend provisional
certification into
the following
calendar year,
redefines the
certification period
from 1 calendar year
to 12 months, and
specifies reasons an
agency would receive
provisional rather
than full
certification.
430.405(c)(3)................. 430.410(a)....... Moves and changes the
word suspend to
terminate.
430.408(b)(1).... Implements statutory
authority of OPM
Director to provide
certification
extensions.
430.408(b)(2).... New provision
providing
requirements for
requesting a
certification
extension.
430.405(d).................... Removed.......... Removes paragraphs
430.405(e)(2)................. addressing the
430.405(f)(2)................. limits on basic pay
and aggregate
compensation because
they are contained
in 5 CFR part 534,
subparts D and E and
Sec. 530.203(b),
respectively.
430.405(e)(1)................. 430.408(a)(1)(i)- Moves and
(iii). restructures for
clarity. Adds as a
requirement for full
certification,
demonstration of
appropriate system
application based on
data reports for the
two most recent
completed
performance cycles.
430.405(e)(3)................. Removed.......... Removes automatic
renewal of full
certification.
430.405(f)(1)................. 430.408(a)(2)(i) Moves and
and (ii). restructures for
clarity.
430.408(a)(2)(iii Adds as a reason for
). receiving
provisional rather
than full
certification, the
demonstration of
appropriate system
application based on
data reports for
only the most recent
completed
performance cycle.
430.405(f)(3)................. Removed.......... Removes requirement
to resubmit
application
requesting
provisional
certification.
430.405(g).................... 430.409.......... Moves and edits for
increased clarity.
Also removes the
requirement to
report aggregate
total compensation.
430.405(h)(1)................. 430.410(a)....... Combines redundant
provisions
previously at
430.405(c)(3) and
430.405(h)(1).
430.405(h)(2)................. 430.410(b)....... Moves and changes the
word suspension to
termination.
430.405(h)(3)................. 430.410(c)-(e)... Moves and
restructures for
increased clarity.
Changes the word
suspension to
termination.
430.405(h)(4)................. 430.410(f)....... Moves, changes the
word suspension to
termination, and
clarifies that a
restored
certification will
terminate on the
same date as the
original
certification.
430.405(h)(5)................. 430.410(g)....... Moves and changes the
word suspension to
termination.
------------------------------------------------------------------------
Regulatory Flexibility Act
I certify that these regulations will not have a significant
economic impact on a substantial number of small entities, because they
will apply only to Federal agencies and employees.
E.O. 12866, Regulatory Review
This rule has been reviewed by the U.S. Office of Management and
Budget in accordance with E.O. 12866.
List of Subjects
5 CFR Parts 317 and 1330
Government employees.
List of Subjects in 5 CFR Parts 430
Decorations, Government employees.
List of Subjects in 5 CFR Part 534
Government employees, Hospitals, Students, and Wages.
U.S. Office of Management and Budget.
Shaun Donovan,
Director.
U.S. Office of Personnel Management.
Beth F. Cobert,
Acting Director.
Accordingly, OPM and OMB are proposing jointly to amend parts 430
and 1330 of title 5 of the Code of Federal Regulations, and OPM
proposes to amend parts 317, 430, and 534 of title 5, Code of Federal
Regulations as follows:
5 CFR Chapter I--Office of Personnel Management
PART 317--EMPLOYMENT IN THE SENIOR EXECUTIVE SERVICE
0
1. The authority citation for part 317 continues to read as follows:
Authority: 5 U.S.C. 3392, 3393, 3395, 3397, 3592, 3593, 3595,
3596, 8414, and 8421.
Subpart E--Career Appointments
0
2. In Sec. 317.501, revise paragraph (b)(2) to read as follows:
Sec. 317.501 Recruitment and selection for initial SES career
appointment be achieved from the brightest and most diverse pool
possible.
* * * * *
(b) * * *
(2) Before an agency may fill an SES vacancy by an initial career
appointment, it must post a vacancy announcement in USAJOBS for at
least 14 calendar days, including the date of publication. Each
agency's SES vacancy announcement must comply with criteria in Sec.
330.104 of subpart A of this chapter, except for criteria pertaining to
[[Page 6344]]
veterans' preference, the Career Transition Assistance Program, and the
Interagency Career Transition Assistance Program.
* * * * *
0
3. In Sec. 317.503, revise paragraph (g)(3) to read as follows:
Sec. 317.503 Probationary period.
* * * * *
(g) * * *
(3) The break in SES service was the result of military duty or
compensable injury, and the time credited under paragraph (d)(3) of
this section was not sufficient to complete the probationary period.
PART 430--MANAGING SENIOR EXECUTIVE PERFORMANCE
0
4. The authority citation for Part 430 continues to read as follows:
Authority: 5 U.S.C. chapter 43 and 5307(d).
0
5. In Sec. 430.309, revise the last sentence of the introductory text
in paragraph (e)(2), paragraph (e)(2)(ii), and the first sentence in
paragraph (e)(2)(iii) to read as follows:
Sec. 430.309. Rating Performance
* * * * *
(e) * * *
(2) * * * The agency must provide each senior executive an
opportunity for review of the initial summary rating by an employee, or
(with the consent of the senior executive) a commissioned officer in
the uniformed services on active duty in the agency, in a higher level
in the agency than the official who prepared the initial rating.
* * * * *
(ii) When an agency cannot provide review by a higher-level
official for a senior executive who receives an initial summary rating
from the agency head because no such official exists in the agency, the
agency must offer an alternative review as it determines appropriate;
however, neither HLR nor alternative review may be provided by a member
of the PRB that will make a recommendation under Sec. 430.311(b)(2)
concerning the senior executive or by an official who participated in
determining the initial summary rating.
(iii) If a senior executive declines review by agency-designated
higher-level officials, the agency may offer an alternative review but
is not obligated to do so unless the only official in a higher level
than the initial rater is the head of the agency. * * *
* * * * *
PART 430--PERFORMANCE MANAGEMENT
0
6. The authority citation for part 430 continues to read as follows:
Authority: 5 U.S.C. chapter 43 and 5307(d).
0
7. Revise subpart D to read as follows.
Subpart D--Performance Appraisal System Certification
Sec.
430.401 Purpose.
430.402 Definitions.
430.403 System certification.
430.404 Certification criteria verified by OPM/OMB.
430.405 Certification criteria verified by the agency.
430.406 Additional appraisal system requirements.
430.407 Agency certification requests.
430.408 OPM certification actions.
430.409 Annual reporting requirement.
430.410 Termination of certification.
Subpart D--Performance Appraisal System Certification
Sec. 403.401 Purpose.
(a) This subpart implements 5 U.S.C. 5307(d), which provides for
certification of performance appraisal systems that as designed and
applied make meaningful distinctions based on relative performance with
respect to--
(1) Members of the Senior Executive Service (SES) paid under 5
U.S.C. 5382 and 5383; and
(2) Employees in senior-level (SL) and scientific or professional
(ST) positions paid under 5 U.S.C. 5376.
(b) The regulations in this subpart strengthen the application of
performance-based-pay principles to senior employees. Specifically, the
statutory provisions that these regulations implement authorize an
agency to apply a higher maximum rate of basic pay in setting and
adjusting rates of basic pay for senior employees (consistent with 5
CFR part 534, subparts D and E) and apply a higher annual aggregate
limitation on pay (consistent with 5 CFR part 530, subpart B) to its
senior employees, when OPM, with OMB concurrence, has certified that
the design and application of the agency's appraisal systems for these
employees make meaningful distinctions based on relative performance.
This subpart establishes the certification criteria and procedures that
OPM will apply in considering agency requests for such certification.
403.402 Definitions.
In this subpart--
Agency means an agency as that term is defined in 5 U.S.C. 105 and
an Office of Inspector General, which is considered a separate agency
for purposes of applying all provisions relating to the Senior
Executive Service under the Inspector General Act of 1978 (5 U.S.C. App
6(d)).
Agency head means the head of an agency and includes the Inspector
General when applying the provisions of this subpart to Offices of the
Inspector General.
Annual summary rating means the overall rating level that an
appointing authority assigns at the end of the appraisal period as
defined in Sec. 430.303.
Appraisal system means the policies, practices, and procedures an
agency establishes under 5 U.S.C. chapter 43 and 5 CFR part 430,
subparts B and C, or other applicable legal authority, for planning,
monitoring, developing, evaluating, and rewarding employee performance.
This includes appraisal systems and appraisal programs as defined in
Sec. 430.203 and performance management systems as defined in Sec.
430.303.
Certification criteria means the factors used to determine whether
an agency appraisal system as designed and applied makes meaningful
distinctions based on relative performance.
GPRAMA means the Government Performance and Results Modernization
Act of 2010.
OMB means the Office of Management and Budget.
OPM means the Office of Personnel Management.
Peer review means the review under Sec. 430.404(a) of performance
plans by one agency for another agency, both having fully certified
performance appraisal systems, to determine whether they meet the
certification criterion for Aligned Results.
Performance expectations means--
(1) the critical elements, performance requirements, and
performance standards that constitute the senior executive performance
plans, as defined in Sec. 430.303, established for senior executives;
(2) the performance elements and standards that constitute the
performance plans, as defined in Sec. 430.203, established for senior
professionals; or
(3) other appropriate means authorized under performance appraisal
systems not covered by 5 U.S.C. chapter 43 for communicating what a
senior employee is expected to do and the measures that demonstrate
success, including contribution to agency performance where
appropriate.
Program performance measures means results-oriented measures of
performance, whether at the agency, component, or function level, which
[[Page 6345]]
include, for example, measures under GPRAMA.
PRB means Performance Review Board, as described in Sec. 430.311.
Rating of record means the performance rating prepared at the end
of an appraisal period for performance of agency-assigned duties over
the entire period as defined in Sec. 430.203.
Relative performance means the performance of a senior employee
compared to the performance expectations established for his or her
position (including contribution to agency performance) and those
expectations must be set at a level that is sufficiently high to be
commensurate with the authorities and responsibilities of a senior
employee in the Federal Government. This does not permit peer ranking
or peer comparison for rating purposes.
Senior employee means a senior executive or a senior professional.
Senior executive means a member of the Senior Executive Service
(SES) paid under 5 U.S.C. 5382 and 5383.
Senior professional means an employee in a senior-level (SL) or
scientific or professional position (ST) paid under 5 U.S.C. 5376.
SPRP means Senior Professional Review Panel as described in Sec.
534.505(a)(5).
Sec. 430.403 System certification.
(a) OPM, with OMB concurrence, will certify an agency appraisal
system under Sec. 430.408 when a review of that system's design (i.e.,
system documentation), implementation (i.e., performance plans), and
application (i.e., pay, performance awards, and ratings upon which they
are based) reveals that the agency meets the certification criteria
established in Sec. Sec. 430.404 and 430.405 and has followed the
procedural requirements set forth in Sec. 430.407, and results in a
finding that the system as designed and applied makes meaningful
distinctions based on relative performance and otherwise conforms to
statutory and regulatory requirements relating to performance
appraisal, pay, and awards.
(b) Each certification granted shall cover a specific period of
time and is not renewable.
(c) Agencies subject to 5 U.S.C. chapter 43 and 5 CFR part 430
seeking certification of their appraisal systems must submit systems
that have been approved by OPM under Sec. 430.210 or Sec. 430.314, as
applicable.
(d) Agencies not subject to the appraisal provisions of 5 U.S.C.
chapter 43 and 5 CFR part 430 seeking certification of their appraisal
system(s) under this subpart must submit appropriate documentation to
demonstrate that each system complies with the appropriate legal
authority that governs the establishment, implementation, and
application of that system.
(e) For senior professionals, an agency must establish an appraisal
system(s), as defined in Sec. 430.402, that meets the requirements of
5 CFR part 430, subpart B, and is separate from the system(s)
established to cover its SES members under 5 CFR part 430, subpart C.
At its discretion, an agency may include system features in its senior
professional appraisal system(s) that are the same as, or similar to,
the features of its SES appraisal system(s), as appropriate. For the
purpose of certification under this subpart, such senior professional
appraisal system(s) with 10 or more senior professionals covered by the
system(s), must include a requirement for centralized review of senior
professionals' ratings of record and proposed pay and performance
awards actions.
Sec. 430.404 Certification criteria verified by OPM/OMB.
To be certified, an agency's applicable appraisal system(s) for
senior executives or senior professionals must meet the following
certification criteria, as verified by OPM, with OMB concurrence:
(a) Aligned results. (1) Performance expectations for individual
senior employees must derive from, and clearly align with, the agency's
mission and organizational goals, such as those communicated through
GPRAMA strategic goals, program and policy objectives, and/or annual
performance plans and budget priorities.
(2) Performance plans must contain performance expectations,
including at least one critical element focusing on business results,
that--
(i) Apply to their respective areas of responsibility and control;
(ii) Reflect expected agency and/or organizational outcomes and
outputs, performance targets or metrics, policy/program objectives,
and/or milestones;
(iii) Identify specific programmatic crosscutting, external, and
partnership-oriented goals or objectives, as applicable; and
(iv) Are stated in terms of observable, measurable, and/or
demonstrable performance (e.g., quality, quantity, timeliness, or cost
effectiveness, as applicable).
(3) OPM may establish additional procedures to allow agencies to
conduct peer reviews of the performance plans to determine whether the
plans meet this criterion. When conducting peer review, agencies may
not conduct concurrent reciprocal reviews.
(b) Performance distinctions. (1) Appraisal systems must include
summary levels of performance as described in 5 CFR 430.305(a)(6) for
senior executives, and for senior professionals at least one summary
level of performance above fully successful.
(2) Agency application of performance appraisal systems must--
(i) Result in meaningful distinctions based on relative
performance; and
(ii) Take into account the assessment of the agency's performance
against relevant program performance measures, as described in Sec.
430.405(a), employee performance expectations, and such other relevant
factors as may be appropriate.
(3) Authorized agency officials, as designated through agency
delegated authority, must appraise senior employee performance
accurately and realistically so that senior employees who have
demonstrated the highest performance and/or exceptional contribution to
the agency's performance receive the highest annual summary ratings or
ratings of record, as applicable.
(4) Agencies with equivalent appraisal systems not otherwise
subject to this part must provide for clearly distinguishing and
identifying the rating that reflects the highest level of performance.
(5) Agencies may not equate the requirement to make distinctions
based on relative performance to permitting a forced distribution of
annual summary ratings or ratings of record, which is prohibited under
Sec. Sec. 430.208(c) and 430.305(a)(5). However, methods used to make
distinctions among employees or groups of employees such as comparing,
categorizing, and ranking employees or groups on the basis of their
performance may be used for purposes other than assigning a summary
level including, but not limited to, award determinations.
(c) Pay differentiation. (1) Agencies must ensure senior employees
who have demonstrated the highest performance receive the highest
annual summary ratings or ratings of record, as applicable, and the
largest corresponding performance awards, pay adjustments, and rates of
pay, in accordance with applicable limitations;
(2) Agencies must ensure differentiation is evident separately in
the pay adjustments, performance awards, and rates of pay;
(3) Agencies must ensure they make pay adjustments and performance
awards for senior employees in a timely manner.
[[Page 6346]]
(i) For senior executives, the pay adjustments authorized under 5
CFR 534.404(b)(3) and the performance awards authorized under 5 U.S.C.
5384 must have effective dates not later than 5 months after the end of
the applicable appraisal period;
(ii) For senior professionals, agencies must make pay adjustments
in accordance with the requirements in Sec. 534.505(b) and pay
performance awards as soon as practicable after the end of the
appraisal period; and
(4) Agencies must develop processes for making pay decisions and
granting awards affecting senior employees that comply with
Governmentwide law, regulation, and guidance. To make these processes
transparent agencies must provide access to the appraisal and pay
policies that govern the decisions and communicate the results as
required in Sec. 430.405(c).
Sec. 430.405 Certification criteria verified by the agency.
To be certified, an agency's applicable appraisal system(s) for
senior executives or senior professionals must meet the following
certification criteria, as verified by the agency in accordance with
instructions provided by OPM:
(a) Organizational assessment and guidelines. Agencies must comply
with all applicable OMB requirements for assessing organizational
performance and may use those assessments to inform the individual
ratings of its senior employees. The results of these assessments are
shared with individuals involved in the rating process through the
issuance of guidelines based at least in part upon those assessments.
The guidelines must--
(1) Address agency performance overall and with respect to each of
its particular missions, components, programs, policy areas, and
support functions--such as reports of the agency's GPRAMA goals, annual
performance plans and targets, program performance measures, and other
appropriate indicators;
(2) Be communicated by the agency head, or an individual
specifically designated by the agency head for such purpose, to
affected senior employees, their rating and reviewing officials, and
PRB and SPRP members;
(3) Be provided at the conclusion of the appraisal period but
before individual senior employee performance ratings are recommended,
so that they inform individual performance appraisals; and
(4) Not take the form of quantitative limitations on the number of
ratings at any given rating level.
(b) Oversight. The agency head or the individual specifically
designated under paragraph (a)(2) of this section must certify for a
particular senior employee appraisal system that--
(1) The senior employee rating process makes meaningful
distinctions based on relative performance;
(2) The results of the senior employee appraisal process take into
account the agency's assessment of its performance against program
performance measures, as well as other relevant considerations, as
appropriate;
(3) Performance awards, pay adjustments, and levels of pay based on
the results of the rating process accurately reflect and recognize
distinctions in individual performance and/or contribution to the
agency's performance; and
(4) Final decisions include PRB or SPRP recommendations regarding
senior employee ratings and must--
(i) Be consistent with 5 CFR part 430, subparts B and C; and
(ii) Appropriately reflect the employee's performance expectations,
relevant program performance measures, and such other relevant factors
as the PRB or SPRP may find appropriate.
(c) Communication of results. Agencies must communicate annually to
senior employees, rating and reviewing officials, and PRB or SPRP
members the results of the application of the appraisal process (i.e.,
overall ratings distributions, average adjustment in the rate of basic
pay for each rating level, and average performance award for each
rating level, as applicable) while assuring confidentiality of
protected information.
Sec. 430.406 Additional appraisal system requirements.
To be certified, an agency's appraisal system must meet the
requirements of 5 CFR part 430, subparts B or C, as applicable, or
other applicable legal authority. Agencies are responsible for ensuring
their senior employee appraisal systems provide for--
(a) Consultation. Performance expectations for senior employees
must be developed with the input and involvement of the senior
employees who are covered thereby;
(b) Balance. Performance expectations established in the individual
senior employee appraisal plan must include two parts:
(1) Expected results; and
(2) Those technical, leadership and/or managerial competencies or
behaviors that contribute to, and are necessary to distinguish, levels
of performance. In addition, for senior employees in supervisory
positions, their performance expectations also must address appropriate
measures or indicators of stakeholder and/or employee perspective when
applicable, such that stakeholder/employee feedback is sought and used
to inform decisions.
(c) Accountability for the performance management of subordinates.
The performance expectations for individual senior employees in
supervisory positions must clearly communicate their responsibility for
ensuring--
(1) The performance expectations for individual subordinate
employees clearly link to organizational mission, GPRAMA strategic
goals, or other program or policy objectives; and
(2) The appraisal of their subordinate employees is based on
established performance expectations that differentiate among the
various levels of performance. An appraisal must be a realistic
assessment of the employees' actual performance, including their
contribution to organizational goals as measured in GPRAMA and other
organizational plans.
(d) Training. Agencies must provide senior employees, rating and
reviewing officials (including those in other services/appointments
such as political appointments, Foreign Service, military, etc.), and
PRB or SPRP members initial training, periodic refresher training, and
annual reminders on the operation of the applicable agency performance
management and pay and awards policies.
Sec. 430.407 Agency certification requests.
To receive system certification, an agency must provide
documentation demonstrating that its appraisal system(s), in design,
implementation, and application, meet the certification criteria in
Sec. Sec. 430.404 and 430.405 as well as the procedural requirements
set forth in this section.
(a) In order for an agency's appraisal system to be certified, the
agency head or designee must submit documentation in accordance with
OPM instructions, including--
(1) A written request, which may include signed electronic formats,
for certification of its appraisal system(s) to the Director of OPM, or
an OPM official assigned to accept certification requests;
(2) Separate certification requests for systems applying to senior
executives, senior professionals, and Offices of the Inspector General;
(3) A full description of the appraisal system(s) to be certified,
including--
(i) Organizational and employee coverage information; and
(ii) Rating levels as described in Sec. 430.404(b)(1) and (4) that
establish
[[Page 6347]]
clear distinctions between levels of performance so senior employees
receive ratings based on assessments of their actual performance
relative to their established performance expectations in any given
appraisal period;
(4) A sample of senior employee performance plans as specified by
OPM, except as provided in paragraph (b) of this section;
(5) Documentation of organizational performance results and an
explanation of how these results support the rating distribution in
accordance with OPM instructions;
(6) Data required by the annual reporting requirement in Sec.
430.409;
(7) Documentation of the pay policy and procedures for setting and
adjusting pay and granting performance awards that includes--
(i) For the agency's senior executives covered by 5 CFR part 534,
subpart D, the plan for setting and adjusting the rate of basic pay
described in Sec. 534.404(g);
(ii) For the agency's senior professionals covered by 5 CFR part
534, subpart E, the written procedures for setting and adjusting the
rate of basic pay described in Sec. 534.505; and
(iii) Policies established for award programs authorized under
Sec. 534.405 or responsibilities identified in Sec. 451.106, as
appropriate; and
(8) Any additional information that OPM and OMB may require to make
a determination regarding certification.
(b) Agencies that participate in a peer review under Sec.
430.404(a) must submit such documentation as OPM requires.
Sec. 430.408 OPM certification actions.
OPM will certify performance appraisal systems, with OMB
concurrence, only for those agencies that comply with all related laws
and regulations.
(a) Granting certification. At the request of an agency head or
designee, the Director of OPM, at his or her discretion and in
accordance with the requirements of this subpart and with OMB
concurrence, may--
(1) Grant full certification, which covers a period of 24 months,
of an agency's senior employee appraisal system(s) when the agency
has--
(i) Demonstrated in the initial submission of its documentation,
and without making any revisions directed by OPM, that it has designed
and fully operationalized the certification criteria defined in
Sec. Sec. 430.404 and 430.405;
(ii) Met the documentation requirements in Sec. 430407; and
(iii) Demonstrated appropriate system application through the data
reports required in Sec. 430.409 based on the 2 most recently
completed performance cycles (2 years of data).
(2) Grant provisional certification, which covers a period of 12
months, of an agency's senior employee appraisal system(s) when the
agency has--
(i) Designed a senior employee appraisal system(s) that meets the
certification criteria in Sec. Sec. 430.404 and 430.405; and
(ii) Revised one or more senior employee performance plans in
accordance with instructions from OPM in order to meet the
certification requirements in Sec. 430.404(a); or
(iii) Demonstrated appropriate system application through the data
reports required in Sec. 430.409 based on only the most recently
completed performance cycle (1 year of data).
(3) Grant provisional certification to an agency more than once.
(b) Extending certification. (1) Consistent with the requirements
of this subpart, the Director of OPM, at his or her discretion or upon
the request of an agency head or designee, may grant a single extension
of up to six additional months for an agency's appraisal system
certification. The discretionary use of the Director's extension
authority will be reserved for rare, exceptional circumstances.
(2) When requesting an extension, the agency head or designee must
submit a written request, which may include signed electronic formats,
to OPM outlining why the agency needs the extension and how the
extension will support effective performance management. OPM will
consider requests for extensions on a case-by-case basis.
Sec. 430.409 Annual reporting requirement.
Agencies must provide OPM with the annual summary ratings or
ratings of record, as applicable, and rates of basic pay, pay
adjustments, and performance and cash awards for their senior employees
in accordance with instructions for OPM's annual data call and at any
other time as needed to support a certification request.
Sec. 430.410 Termination of certification.
(a) Any time OPM determines that an agency's certified appraisal
system is no longer in compliance with certification criteria, OPM,
with OMB concurrence, may terminate such certification.
(b) An agency's system certification is terminated automatically
when OPM withdraws performance appraisal system approval or mandates
corrective action because of misapplication of the system as authorized
under Sec. 430.210(c) or Sec. 430.314(c).
(c) OPM will notify the agency head at least 30 calendar days in
advance of the termination and the reason(s) for the termination, as
well as any expected corrective action.
(d) Upon such termination, and until its system certification is
reinstated, the agency must--
(1) Set a senior employee's rate of basic pay under 5 CFR part 534,
subparts D or E as applicable, at a rate that does not exceed the rate
for level III of the Executive Schedule.
(2) Limit aggregate compensation received in a calendar year by a
senior employee to the rate for level I of the Executive Schedule.
(e) Performance awards, pay adjustments, and levels of pay in
effect prior to such termination will remain in effect unless OPM finds
that any such decision and subsequent action was in violation of law,
rule, or regulation.
(f) OPM, with OMB concurrence, may reinstate certification to an
agency whose certification has been terminated only after the agency
demonstrates it has taken appropriate corrective action. A restored
certification will terminate on the same date as the original
certification. An agency with a terminated certification may choose to
submit a new certification request once it has corrected the issue(s)
that led to the termination.
(g) OPM may reinstate the certification of an appraisal system that
has been terminated automatically under paragraph (b) of this section
upon the agency's compliance with the applicable OPM-mandated
corrective action(s).
PART 534--PAY UNDER OTHER SYSTEMS
0
8. Revise the authority citation for part 534 to read as follows:
Authority: 5 U.S.C. 1104, 3161(d), 5307, 5351, 5352, 5353, 5376,
5382, 5383, 5384, 5385, 5541, 5550a, sec. 1125 of the National
Defense Authorization Act for FY 2004, Pub. L. 108-136, 117 Stat.
1638 (5 U.S.C. 5304, 5382, 5383, 7302; 18 U.S.C. 207); and Pub. L.
110-372, 122 Stat. 4043 (5 U.S.C. 5304, 5307, 5376).
Subpart D--Pay and Performance Awards Under the Senior Executive
Service.
0
9. In Sec. 534.403, revise the first sentence of paragraph (b) to read
as follows:
Sec. 534.403 SES rate range.
* * * * *
(b) Termination of certification of performance appraisal system. A
senior executive whose rate of basic pay is higher than the rate for
level III of the Executive Schedule may not suffer a
[[Page 6348]]
reduction in pay because his or her agency's applicable performance
appraisal system certification is terminated under 5 CFR 430.410. * * *
0
10. In Sec. 534.404--
0
a. Revise paragraphs (b)(4)(ii) and (b)(4)(iii);
0
b. Revise paragraphs (c)(1) and (c)(4) and add new paragraph (c)(6);
0
c. Revise paragraph (e)(1);
0
d. Revise paragraph (g)(3);
0
e. Revise paragraph (i)(1).
The revisions and additions to read as follows:
Sec. 534.404 Setting and adjusting pay for senior executives.
* * * * *
(b) * * *
(4) * * *
(ii) A pay increase under paragraph (b)(4)(i) of this section may
not be provided to a senior executive whose rate of basic pay is at or
below the rate for level III of the Executive Schedule if such an
increase would cause the senior executive's rate of basic pay to exceed
the rate for level III of the Executive Schedule unless the senior
executive has received an annual summary rating of outstanding for the
most recently completed appraisal period and the agency head or
designee who performs the functions described in 5 CFR 430.405(a)(2)
and (b) (including the Inspector General, where applicable) has
approved the increase in pay.
(iii) A pay increase under paragraph (b)(4)(i) of this section may
not be provided to a senior executive whose rate of basic pay is above
the rate for level III of the Executive Schedule unless the senior
executive has received an annual summary rating of outstanding for the
most recently completed appraisal period and the agency head or
designee who performs the functions described in 5 CFR 430.405(a)(2)
and (b) (including the Inspector General, where applicable) has
approved the increase in pay. However, in the case of a senior
executive whose rate of basic pay is above the rate for level III of
the Executive Schedule and who has been rated below outstanding, but
above fully successful, for the most recently completed appraisal
period, the agency head or designee who performs the functions
described in 5 CFR 430.405(a)(2) and (b) (including the Inspector
General, where applicable) may approve such a pay increase in limited
circumstances, such as for an exceptionally meritorious accomplishment.
* * * * *
(c) 12-month rule. (1) An authorized agency official may adjust
(i.e., increase or reduce) the rate of basic pay of a senior executive
not more than once during any 12-month period. However, an agency may
make a determination to provide an additional pay increase under
certain conditions as prescribed in paragraphs (c)(3), (c)(4), and
(c)(6) of this section without regard to whether the senior executive
has received a pay adjustment during the previous 12-month period.
* * * * *
(4) An authorized agency official may approve increases in a senior
executive's rate of basic pay more than once during a 12-month period
if the agency head or designee who performs the functions described in
5 CFR 430.405(a)(2) and (b) (including the Inspector General, where
applicable) determines that--
* * * * *
(6) When necessary to maintain an annual executive appraisal and
pay adjustment cycle that permits pay adjustments on the first day of
the 27th full bi-weekly pay period following the effective date of pay
adjustments for the previous cycle, an authorized agency official may
provide a pay adjustment to a senior executive not more than 2 days
before an applicable 12-month period expires. The pay adjustment begins
a new 12-month period for the purpose of paragraph (c)(1).
* * * * *
(e) Adjustments in pay after certification of applicable
performance appraisal system. (1) In the case of an agency that obtains
certification of a performance appraisal system for senior executives
under 5 CFR part 430, subpart D, an authorized agency official may
subsequently increase a covered senior executive's rate of basic pay
based upon a performance appraisal under the certified system up to the
rate for level II of the Executive Schedule, consistent with the
limitations in Sec. 534.403(a)(3), under the conditions prescribed in
paragraph (b) of this section, if the senior executive is otherwise
eligible for such an increase (i.e., he or she did not receive a pay
adjustment under Sec. 534.404(c) during the previous 12-month period).
An adjustment in pay made under this paragraph is considered a pay
adjustment for the purpose of applying Sec. 534.404(c).
* * * * *
(g) * * *
(3) The designation of the authorized agency official who has
authority to set and adjust SES rates of pay for individual senior
executives, subject to the requirement that the agency head or designee
who performs the functions described in 5 CFR 430.405(a)(2) and (b)
(including the Inspector General, where applicable) must approve any
determination to set a senior executive's rate of basic pay higher than
the rate for level III of the Executive Schedule and must approve any
determination to increase a senior executive's rate of basic pay more
than once in any 12-month period; and
* * * * *
(i) Setting pay following a break in SES service--(1) General. Upon
reappointment to the SES, an authorized agency official may set the
rate of basic pay of a former senior executive at any rate within the
SES rate range, subject to the limitations in Sec. 534.403(a), if
there has been a break in SES service of more than 30 days. If there
has been a break in SES service of 30 days or less, the senior
executive's rate of basic pay may be set at any rate within the SES
rate range (without regard to whether the employee received a pay
adjustment during the previous 12-month period), but not higher than
the senior executive's former SES rate of basic pay. Where there has
been a break in service of 30 days or less, the agency head or designee
who performs the functions described in 5 CFR 430.405(a)(2) and (b)
(including the Inspector General, where applicable) may approve a
higher rate than the senior executive's former rate of basic pay, if
warranted. Setting a rate of basic pay upon reappointment to the SES is
considered a pay adjustment under Sec. 534.404(c).
* * * * *
Sec. 534.503 [Amended].
0
11. Amend Sec. 534.503 as follows:
0
a. Remove the reference ``Sec. 430.405(h)'' from the definition
``Certified'' and add in its place ``Sec. 430.410'', and remove from
that definition the term ``suspension'' and add in its place
``termination'';
0
b. Remove the reference ``Sec. 430.405(h)'' from the definition ``Not
certified'' and add in its place ``Sec. 430.410'', and remove from
that definition the term ``suspended'' and add in its place
``terminated''; and
0
c. Remove the reference ``Sec. 430.404(a)(1) through (9)'' and add in
its place ``Sec. Sec. 430.404 and 430.405''.
0
12. Amend Sec. 534.505 as follows:
0
a. Remove the reference ``Sec. 430.404(a)(6)(i), (ii) and (iii)'' and
add in its place ``Sec. 430.405(b)(1), (2) and (3)''; and
0
b. Remove the reference ``Sec. 430.403(d)'' and add in its place
``Sec. 430.403(e)''.
0
c. Revise paragraph (a)(5) to read as follows:
[[Page 6349]]
Sec. 534.505 Written procedures.
(a) * * *
(5) The administrative and management controls that will be applied
to assure compliance with applicable statutes, OPM regulations, the
agency's written procedures established under this section, the
applicable maximum rate of basic pay inSec. 534.504(a), and, where
applicable, the certification requirements set forth in part 430,
subpart D of this chapter. In an agency that employs ten or more senior
professionals, these controls must include centralized review of
ratings proposed under Sec. 430.208 of this chapter, pay actions
proposed under Sec. 534.507, and performance awards under Sec.
451.104(a)(3) by a panel of individuals designated by the agency head
to provide advice from an agency-wide perspective for authorized agency
officials to consider before approving pay adjustments and performance
awards on whether--
(i) Ratings of record and performance ratings proposed for senior
professionals accurately reflect their individual performance,
contributions to agency performance, or both, and take into account, as
appropriate, assessment of the agency's performance against program
performance measures and other relevant considerations; and
(ii) Proposed pay adjustments and performance awards for senior
professionals conform to the requirements of Sec. Sec. 534.507 and
451.104(a)(3) respectively and appropriately correspond to proposed
ratings of record and performance ratings.
* * * * *
Sec. 534.506 [Amended].
0
13. Amend Sec. 534.506 to remove the reference ``Sec.
430.404(a)(6)(i), (ii) and (iii)'' and add in its place ``Sec.
430.405(b)(1), (2) and (3)''.
0
14. In Sec. 534.507, revise paragraph (a)(2) to read as follows:
Sec. 534.507 Annual increases in basic pay.
(a) * * *
(2) A determination by an authorized agency official to make a zero
adjustment in pay after reviewing a senior professional's current
rating of record or performance rating meets the requirement of
paragraph (a)(1) of this section only if the notice required by
paragraph (h) of this section is provided to the senior professional no
later than 14 days after the date specified in paragraph (a)(1) of this
section.
* * * * *
0
15. In Sec. 534.509, revise paragraph (b) to read as follows:
Sec. 534.509 Preservation of an established rate of basic pay.
* * * * *
(b) An SL or ST employee whose rate of basic pay is higher than the
rate for level III of the Executive Schedule may not suffer a reduction
in pay because his or her agency's applicable performance appraisal
system certification expires or is terminated under Sec. 430.410 of
this chapter. See Sec. 530.203(g) and (h) of this chapter for
treatment of the aggregate pay limit when certification status changes
during the calendar year.
* * * * *
Sec. 534.510 [Amended].
0
16. Amend Sec. 534.510 to remove the references ``Sec.
430.404(a)(6)(i), (ii) and (iii)'' and add in their place ``Sec.
430.405(b)(1), (2) and (3)'' wherever they occur.
5 CFR Chapter III--Office of Management and Budget
Subchapter C--Joint Regulations With the Office of Personnel
Management
PART 1330--HUMAN RESOURCES MANAGEMENT
0
17. The authority citation for part 1330 continues to read as follows:
Authority: 5 U.S.C. chapter 43 and 5307(d).
0
18. Revise Subpart D of part 1330 to to read as follows:
Subparts A--C [Reserved]
Subpart D--Performance Appraisal System Certification
Sec.
1330.401 Purpose.
1330.402 Definitions.
1330.403 System certification.
1330.404 Certification criteria verified by OPM/OMB.
1330.405 Certification criteria verified by the agency.
1330.406 Additional appraisal system requirements.
1330.407 Agency certification requests.
1330.408 OPM certification actions.
1330.409 Annual reporting requirement.
1330.410 Termination of certification.
Authority: 5 U.S.C. 5307(d).
Subpart D--Performance Appraisal System Certification
Sec. 1330.401 Purpose.
(a) This subpart implements 5 U.S.C. 5307(d), which provides for
certification of performance appraisal systems that as designed and
applied make meaningful distinctions based on relative performance with
respect to--
(1) Members of the Senior Executive Service (SES) paid under 5
U.S.C. 5382 and 5383; and
(2) Employees in senior-level (SL) and scientific or professional
(ST) positions paid under 5 U.S.C. 5376.
(b) The regulations in this subpart strengthen the application of
performance-based-pay principles to senior employees. Specifically, the
statutory provisions that these regulations implement authorize an
agency to apply a higher maximum rate of basic pay in setting and
adjusting rates of basic pay for senior employees (consistent with 5
CFR part 534, subparts D and E) and apply a higher annual aggregate
limitation on pay (consistent with 5 CFR part 530, subpart B) to its
senior employees, when OPM, with OMB concurrence, has certified that
the design and application of the agency's appraisal systems for these
employees make meaningful distinctions based on relative performance.
This subpart establishes the certification criteria and procedures that
OPM will apply in considering agency requests for such certification.
Sec. 1330.402 Definitions.
In this subpart--
Agency means an agency as that term is defined in 5 U.S.C. 105 and
an Office of Inspector General, which is considered a separate agency
for purposes of applying all provisions relating to the Senior
Executive Service under the Inspector General Act of 1978 (5 U.S.C. App
6(d)).
Agency head means the head of an agency and includes the Inspector
General when applying the provisions of this subpart to Offices of the
Inspector General.
Annual summary rating means the overall rating level that an
appointing authority assigns at the end of the appraisal period as
defined in Sec. 430.303.
Appraisal system means the policies, practices, and procedures an
agency establishes under 5 U.S.C. chapter 43 and 5 CFR part 430,
subparts B and C, or other applicable legal authority, for planning,
monitoring, developing, evaluating, and rewarding employee performance.
This includes appraisal systems and appraisal programs as defined in
Sec. 430.203 and performance management systems as defined in Sec.
430.303.
Certification criteria means the factors used to determine whether
an agency appraisal system as designed and applied makes meaningful
distinctions based on relative performance.
GPRAMA means the Government Performance and Results Modernization
Act of 2010.
OMB means the Office of Management and Budget.
[[Page 6350]]
OPM means the Office of Personnel Management.
Peer review means the review under Sec. 1330.404(a) of performance
plans by one agency for another agency, both having fully certified
performance appraisal systems, to determine whether they meet the
certification criterion for Aligned Results.
Performance expectations means--
(1) the critical elements, performance requirements, and
performance standards that constitute the senior executive performance
plans, as defined in Sec. 430.303, established for senior executives;
(2) the performance elements and standards that constitute the
performance plans, as defined in Sec. 430.203, established for senior
professionals; or
(3) other appropriate means authorized under performance appraisal
systems not covered by 5 U.S.C. chapter 43 for communicating what a
senior employee is expected to do and the measures that demonstrate
success, including contribution to agency performance where
appropriate.
Program performance measures means results-oriented measures of
performance, whether at the agency, component, or function level, which
include, for example, measures under GPRAMA.
PRB means Performance Review Board, as described in Sec. 430.311.
Rating of record means the performance rating prepared at the end
of an appraisal period for performance of agency-assigned duties over
the entire period as defined in Sec. 430.203.
Relative performance means the performance of a senior employee
compared to the performance expectations established for his or her
position (including contribution to agency performance) and those
expectations must be set at a level that is sufficiently high to be
commensurate with the authorities and responsibilities of a senior
employee in the Federal Government. This does not permit peer ranking
or peer comparison for rating purposes.
Senior employee means a senior executive or a senior professional.
Senior executive means a member of the Senior Executive Service
(SES) paid under 5 U.S.C. 5382 and 5383.
Senior professional means an employee in a senior-level (SL) or
scientific or professional position (ST) paid under 5 U.S.C. 5376.
SPRP means Senior Professional Review Panel as described in Sec.
534.505(a)(5).
Sec. 1330.403 System certification.
(a) OPM, with OMB concurrence, will certify an agency appraisal
system under Sec. 1330.408 when a review of that system's design
(i.e., system documentation), implementation (i.e., performance plans),
and application (i.e., pay, performance awards, and ratings upon which
they are based) reveals that the agency meets the certification
criteria established in Sec. Sec. 1330.404 and 1330.405 and has
followed the procedural requirements set forth in Sec. 1330.407, and
results in a finding that the system as designed and applied makes
meaningful distinctions based on relative performance and otherwise
conforms to statutory and regulatory requirements relating to
performance appraisal, pay, and awards.
(b) Each certification granted shall cover a specific period of
time and is not renewable.
(c) Agencies subject to 5 U.S.C. chapter 43 and 5 CFR part 430
seeking certification of their appraisal systems must submit systems
that have been approved by OPM under Sec. 430.210 or Sec. 430.314, as
applicable.
(d) Agencies not subject to the appraisal provisions of 5 U.S.C.
chapter 43 and 5 CFR part 430 seeking certification of their appraisal
system(s) under this subpart must submit appropriate documentation to
demonstrate that each system complies with the appropriate legal
authority that governs the establishment, implementation, and
application of that system.
(e) For senior professionals, an agency must establish an appraisal
system(s), as defined in Sec. 1330.402, that meets the requirements of
5 CFR part 430, subpart B, and is separate from the system(s)
established to cover its SES members under 5 CFR part 430, subpart C.
At its discretion, an agency may include system features in its senior
professional appraisal system(s) that are the same as, or similar to,
the features of its SES appraisal system(s), as appropriate. For the
purpose of certification under this subpart, such senior professional
appraisal system(s) with 10 or more senior professionals covered by the
system(s), must include a requirement for centralized review of senior
professionals' ratings of record and proposed pay and performance
awards actions.
Sec. 1330.404 Certification criteria verified by OPM/OMB.
To be certified, an agency's applicable appraisal system(s) for
senior executives or senior professionals must meet the following
certification criteria, as verified by OPM, with OMB concurrence:
(a) Aligned results. (1) Performance expectations for individual
senior employees must derive from, and clearly align with, the agency's
mission and organizational goals, such as those communicated through
GPRAMA strategic goals, program and policy objectives, and/or annual
performance plans and budget priorities.
(2) Performance plans must contain performance expectations,
including at least one critical element focusing on business results,
that--
(i) Apply to their respective areas of responsibility and control;
(ii) Reflect expected agency and/or organizational outcomes and
outputs, performance targets or metrics, policy/program objectives,
and/or milestones;
(iii) Identify specific programmatic crosscutting, external, and
partnership-oriented goals or objectives, as applicable; and
(iv) Are stated in terms of observable, measurable, and/or
demonstrable performance (e.g., quality, quantity, timeliness, or cost
effectiveness, as applicable).
(3) OPM may establish additional procedures to allow agencies to
conduct peer reviews of the performance plans to determine whether the
plans meet this criterion. When conducting peer review, agencies may
not conduct concurrent reciprocal reviews.
(b) Performance distinctions. (1) Appraisal systems must include
summary levels of performance as described in 5 CFR 430.305(a)(6) for
senior executives, and for senior professionals at least one summary
level of performance above fully successful.
(2) Agency application of performance appraisal systems must--
(i) Result in meaningful distinctions based on relative
performance; and
(ii) Take into account the assessment of the agency's performance
against relevant program performance measures, as described in Sec.
1330.405(a), employee performance expectations, and such other relevant
factors as may be appropriate.
(3) Authorized agency officials, as designated through agency
delegated authority, must appraise senior employee performance
accurately and realistically so that senior employees who have
demonstrated the highest performance and/or exceptional contribution to
the agency's performance receive the highest annual summary ratings or
ratings of record, as applicable.
(4) Agencies with equivalent appraisal systems not otherwise
subject to this part must provide for clearly
[[Page 6351]]
distinguishing and identifying the rating that reflects the highest
level of performance.
(5) Agencies may not equate the requirement to make distinctions
based on relative performance to permitting a forced distribution of
annual summary ratings or ratings of record, which is prohibited under
Sec. Sec. 430.208(c) and 430.305(a)(5). However, methods used to make
distinctions among employees or groups of employees such as comparing,
categorizing, and ranking employees or groups on the basis of their
performance may be used for purposes other than assigning a summary
level including, but not limited to, award determinations.
(c) Pay differentiation. (1) Agencies must ensure senior employees
who have demonstrated the highest performance receive the highest
annual summary ratings or ratings of record, as applicable, and the
largest corresponding performance awards, pay adjustments, and rates of
pay, in accordance with applicable limitations;
(2) Agencies must ensure differentiation is evident separately in
the pay adjustments, performance awards, and rates of pay;
(3) Agencies must ensure they make pay adjustments and performance
awards for senior employees in a timely manner.
(i) For senior executives, the pay adjustments authorized under 5
CFR 534.404(b)(3) and the performance awards authorized under 5 U.S.C.
5384 must have effective dates not later than 5 months after the end of
the applicable appraisal period;
(ii) For senior professionals, agencies must make pay adjustments
in accordance with the requirements in Sec. 534.505(b) and pay
performance awards as soon as practicable after the end of the
appraisal period; and
(4) Agencies must develop processes for making pay decisions and
granting awards affecting senior employees that comply with
Governmentwide law, regulation, and guidance. To make these processes
transparent agencies must provide access to the appraisal and pay
policies that govern the decisions and communicate the results as
required in Sec. 1330.405(c).
Sec. 1330.405 Certification criteria verified by the agency.
To be certified, an agency's applicable appraisal system(s) for
senior executives or senior professionals must meet the following
certification criteria, as verified by the agency in accordance with
instructions provided by OPM:
(a) Organizational assessment and guidelines. Agencies must comply
with all applicable OMB requirements for assessing organizational
performance and may use those assessments to inform the individual
ratings of its senior employees. The results of these assessments are
shared with individuals involved in the rating process through the
issuance of guidelines based at least in part upon those assessments.
The guidelines must--
(1) Address agency performance overall and with respect to each of
its particular missions, components, programs, policy areas, and
support functions--such as reports of the agency's GPRAMA goals, annual
performance plans and targets, program performance measures, and other
appropriate indicators;
(2) Be communicated by the agency head, or an individual
specifically designated by the agency head for such purpose, to
affected senior employees, their rating and reviewing officials, and
PRB and SPRP members;
(3) Be provided at the conclusion of the appraisal period but
before individual senior employee performance ratings are recommended,
so that they inform individual performance appraisals; and
(4) Not take the form of quantitative limitations on the number of
ratings at any given rating level.
(b) Oversight. The agency head or the individual specifically
designated under paragraph (a)(2) of this section must certify for a
particular senior employee appraisal system that--
(1) The senior employee rating process makes meaningful
distinctions based on relative performance;
(2) The results of the senior employee appraisal process take into
account the agency's assessment of its performance against program
performance measures, as well as other relevant considerations, as
appropriate;
(3) Performance awards, pay adjustments, and levels of pay based on
the results of the rating process accurately reflect and recognize
distinctions in individual performance and/or contribution to the
agency's performance; and
(4) Final decisions include PRB or SPRP recommendations regarding
senior employee ratings and must--
(i) Be consistent with 5 CFR part 430, subparts B and C; and
(ii) Appropriately reflect the employee's performance expectations,
relevant program performance measures, and such other relevant factors
as the PRB or SPRP may find appropriate.
(c) Communication of results. Agencies must communicate annually to
senior employees, rating and reviewing officials, and PRB or SPRP
members the results of the application of the appraisal process (i.e.,
overall ratings distributions, average adjustment in the rate of basic
pay for each rating level, and average performance award for each
rating level, as applicable) while assuring confidentiality of
protected information.
Sec. 1330.406 Additional appraisal system requirements.
To be certified, an agency's appraisal system must meet the
requirements of 5 CFR part 430, subparts B or C, as applicable, or
other applicable legal authority. Agencies are responsible for ensuring
their senior employee appraisal systems provide for--
(a) Consultation. Performance expectations for senior employees
must be developed with the input and involvement of the senior
employees who are covered thereby;
(b) Balance. Performance expectations established in the individual
senior employee appraisal plan must include two parts:
(1) Expected results; and
(2) Those technical, leadership and/or managerial competencies or
behaviors that contribute to, and are necessary to distinguish, levels
of performance. In addition, for senior employees in supervisory
positions, their performance expectations also must address appropriate
measures or indicators of stakeholder and/or employee perspective when
applicable, such that stakeholder/employee feedback is sought and used
to inform decisions.
(c) Accountability for the performance management of subordinates.
The performance expectations for individual senior employees in
supervisory positions must clearly communicate their responsibility for
ensuring--
(1) The performance expectations for individual subordinate
employees clearly link to organizational mission, GPRAMA strategic
goals, or other program or policy objectives; and
(2) The appraisal of their subordinate employees is based on
established performance expectations that differentiate among the
various levels of performance. An appraisal must be a realistic
assessment of the employees' actual performance, including their
contribution to organizational goals as measured in GPRAMA and other
organizational plans.
(d) Training. Agencies must provide senior employees, rating and
reviewing officials (including those in other services/appointments
such as political appointments, Foreign Service, military, etc.), and
PRB or SPRP members initial training, periodic refresher training, and
[[Page 6352]]
annual reminders on the operation of the applicable agency performance
management and pay and awards policies.
Sec. 1330.407 Agency certification requests.
To receive system certification, an agency must provide
documentation demonstrating that its appraisal system(s), in design,
implementation, and application, meet the certification criteria in
Sec. Sec. 1330.404 and 1330.405 as well as the procedural requirements
set forth in this section.
(a) In order for an agency's appraisal system to be certified, the
agency head or designee must submit documentation in accordance with
OPM instructions, including--
(1) A written request, which may include signed electronic formats,
for certification of its appraisal system(s) to the Director of OPM, or
an OPM official assigned to accept certification requests;
(2) Separate certification requests for systems applying to senior
executives, senior professionals, and Offices of the Inspector General;
(3) A full description of the appraisal system(s) to be certified,
including--
(i) Organizational and employee coverage information; and
(ii) Rating levels as described in Sec. 1330.404(b)(1) and (4)
that establish clear distinctions between levels of performance so
senior employees receive ratings based on assessments of their actual
performance relative to their established performance expectations in
any given appraisal period;
(4) A sample of senior employee performance plans as specified by
OPM, except as provided in paragraph (b) of this section;
(5) Documentation of organizational performance results and an
explanation of how these results support the rating distribution in
accordance with OPM instructions;
(6) Data required by the annual reporting requirement in Sec.
1330.409;
(7) Documentation of the pay policy and procedures for setting and
adjusting pay and granting performance awards that includes--
(i) For the agency's senior executives covered by 5 CFR part 534,
subpart D, the plan for setting and adjusting the rate of basic pay
described in Sec. 534.404(g);
(ii) For the agency's senior professionals covered by 5 CFR part
534, subpart E, the written procedures for setting and adjusting the
rate of basic pay described in Sec. 534.505; and
(iii) Policies established for award programs authorized under
Sec. 534.405 or responsibilities identified in Sec. 451.106, as
appropriate; and
(8) Any additional information that OPM and OMB may require to make
a determination regarding certification.
(b) Agencies that participate in a peer review under Sec.
1330.404(a) must submit such documentation as OPM requires.
Sec. 1330.408 OPM certification actions.
OPM will certify performance appraisal systems, with OMB
concurrence, only for those agencies that comply with all related laws
and regulations.
(a) Granting certification. At the request of an agency head or
designee, the Director of OPM, at his or her discretion and in
accordance with the requirements of this subpart and with OMB
concurrence, may--
(1) Grant full certification, which covers a period of 24 months,
of an agency's senior employee appraisal system(s) when the agency
has--
(i) Demonstrated in the initial submission of its documentation,
and without making any revisions directed by OPM, that it has designed
and fully operationalized the certification criteria defined in
Sec. Sec. 1330.404 and1330.405;
(ii) Met the documentation requirements in Sec. 1330.407; and
(iii) Demonstrated appropriate system application through the data
reports required in Sec. 1330.409 based on the 2 most recently
completed performance cycles (2 years of data).
(2) Grant provisional certification, which covers a period of 12
months, of an agency's senior employee appraisal system(s) when the
agency has--
(i) Designed a senior employee appraisal system(s) that meets the
certification criteria in Sec. Sec. 1330.404 and 1330.405; and
(ii) Revised one or more senior employee performance plans in
accordance with instructions from OPM in order to meet the
certification requirements in Sec. 1330.404(a); or
(iii) Demonstrated appropriate system application through the data
reports required in Sec. 1330.409 based on only the most recently
completed performance cycle (1 year of data).
(3) Grant provisional certification to an agency more than once.
(b) Extending certification. (1) Consistent with the requirements
of this subpart, the Director of OPM, at his or her discretion or upon
the request of an agency head or designee, may grant a single extension
of up to six additional months for an agency's appraisal system
certification. The discretionary use of the Director's extension
authority will be reserved for rare, exceptional circumstances.
(2) When requesting an extension, the agency head or designee must
submit a written request, which may include signed electronic formats,
to OPM outlining why the agency needs the extension and how the
extension will support effective performance management. OPM will
consider requests for extensions on a case-by-case basis.
Sec. 1330.409 Annual reporting requirement.
Agencies must provide OPM with the annual summary ratings or
ratings of record, as applicable, and rates of basic pay, pay
adjustments, and performance and cash awards for their senior employees
in accordance with instructions for OPM's annual data call and at any
other time as needed to support a certification request.
Sec. 1330.410 Termination of certification.
(a) Any time OPM determines that an agency's certified appraisal
system is no longer in compliance with certification criteria, OPM,
with OMB concurrence, may terminate such certification.
(b) An agency's system certification is terminated automatically
when OPM withdraws performance appraisal system approval or mandates
corrective action because of misapplication of the system as authorized
under Sec. 430.210(c) or Sec. 430.314(c).
(c) OPM will notify the agency head at least 30 calendar days in
advance of the termination and the reason(s) for the termination, as
well as any expected corrective action.
(d) Upon such termination, and until its system certification is
reinstated, the agency must--
(1) Set a senior employee's rate of basic pay under 5 CFR part 534,
subparts D or E as applicable, at a rate that does not exceed the rate
for level III of the Executive Schedule.
(2) Limit aggregate compensation received in a calendar year by a
senior employee to the rate for level I of the Executive Schedule.
(e) Performance awards, pay adjustments, and levels of pay in
effect prior to such termination will remain in effect unless OPM finds
that any such decision and subsequent action was in violation of law,
rule, or regulation.
(f) OPM, with OMB concurrence, may reinstate certification to an
agency whose certification has been terminated only after the agency
demonstrates it has taken appropriate corrective action. A restored
certification will terminate on the same date as the original
certification. An agency with a terminated certification may choose to
submit a new certification request once it has corrected the issue(s)
that led to the termination.
[[Page 6353]]
(g) OPM may reinstate the certification of an appraisal system that
has been terminated automatically under paragraph (b) of this section
upon the agency's compliance with the applicable OPM-mandated
corrective action(s).
[FR Doc. 2017-01326 Filed 1-18-17; 8:45 am]
BILLING CODE 6325-39-P