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.

Proposed Rules Federal Register

89321 

Vol. 88, No. 247 

Wednesday, December 27, 2023 

1 59 FR 67121 (Dec. 29, 1994). 

2OPM abolished the FPM in December 1993, as 

recommended by the National Performance Review. 

FPM chapter 335 was kept temporarily through 

December 31, 1994, to enable OPM to incorporate 

promotion and internal placement requirements in 

the CFR. 

3See National Federation of Federal Employees v. 

Department of the Interior Bureau of Land 

Management, 29 FLRA 1491 (1987). 

4See National Treasury Employees Union v. 

Department of Treasury Internal Revenue Service, 

29 FLRA 348 (1987). 

OFFICE OF PERSONNEL 

MANAGEMENT 

5 CFR Part 335 

[Docket ID: OPM–2023–0041] 

RIN 3206–AO52 

Time-Limited Promotions 

AGENCY: Office of Personnel 

Management. 

ACTION: Proposed rule. 

SUMMARY: The Office of Personnel 

Management (OPM) is issuing a 

proposed regulation to clarify that 

bargaining-unit employees, who are 

detailed or temporarily promoted to 

higher grade duties of a higher-graded 

position, should be paid accordingly for 

the entire time performing these duties 

of a higher-graded position, when this 

action is pursuant to a final order by an 

arbitrator, adjudicative body, or court, 

under a collective bargaining agreement 

that provides for this action and the 

employees were assigned these duties 

outside of competitive hiring 

procedures. In addition, the proposed 

change clarifies that non-bargaining unit 

employees who are temporarily 

promoted to higher grade duties of a 

higher-graded position should be paid 

accordingly for the entire time 

performing these duties of a highergraded position, as found pursuant to a 

final order by an adjudicative body or 

court. At present, non-competitive 

temporary promotions, and noncompetitive details to duties of highergraded positions are limited to no more 

than 120 days under OPM regulations 

regardless of the bargaining-unit status 

of the employee. Competitive 

procedures apply for any temporary 

promotion or detail to duties of a 

higher-graded position that exceeds 120- 

days, again, regardless of the bargainingunit status of the employee. 

DATES: Comments must be received on 

or before February 26, 2024. 

ADDRESSES: You may submit comments, 

identified by the docket number or 

Regulation Identifier Number (RIN) for 

this proposed rulemaking, via the 

Federal eRulemaking Portal: https://

www.regulations.gov. Follow the 

instructions for sending comments. 

Instructions: All submissions must 

include the agency name and docket 

number or RIN for this rulemaking. 

Please arrange and identify your 

comments on the regulatory text by 

subpart and section number; if your 

comments relate to the supplementary 

information, please refer to the heading 

and page number. All comments 

received will be posted without change, 

including any personal information 

provided. Please ensure your comments 

are submitted within the specified open 

comment period. Before finalizing this 

rule, OPM will consider comments 

received on or before the closing date 

for comments. OPM may make changes 

to the final rule after considering the 

comments received. 

FOR FURTHER INFORMATION CONTACT: 

Timothy Curry by email at awr@

opm.gov or by telephone at (202) 606– 

2930. 

SUPPLEMENTARY INFORMATION: 

I. Background 

On December 29, 1994, OPM issued 

interim regulations to maintain 

requirements under which agencies 

conduct merit promotion and internal 

placement programs in the competitive 

service.1 These requirements were in 

the provisionally retained chapter 335 

of the former Federal Personnel Manual 

(FPM) and related issuances. Adopting 

the interim rule prevented a lapse in 

government-wide requirements when 

FPM chapter 335 expired on December 

31, 1994.2 The interim rule was effective 

on January 1, 1995. Agencies were 

authorized by 5 CFR 335.103 to promote 

competitive service employees to 

positions for which the agency had 

adopted and administered a merit 

promotion program. The promotion 

program had to conform with the 

standards and requirements that were in 

provisionally retained chapter 335 of 

the former FPM. This included the 

requirement that competitive 

procedures must be followed for timelimited promotions for more than 120 

days to higher-graded positions. This 

requirement still exists today. 

The Federal Labor Relations 

Authority (FLRA) has found union 

proposals requiring the temporary 

promotion of bargaining unit employees 

officially assigned to a higher-graded 

position, or to the duties of a highergraded position, for certain specified 

time periods are within the duty to 

bargain.3 The FLRA has further found 

that, under Federal personnel law, an 

employee may be entitled to a 

temporary promotion for performing the 

duties of a higher grade position for an 

extended period of time. However, the 

FLRA has emphasized that ‘‘the 

entitlement must be based on a 

provision of a collective bargaining 

agreement or an agency regulation 

making a temporary promotion 

mandatory for details to, or the 

performance of the duties of, a highergrade position after a specified period of 

time.’’ 4 As a result, some collective 

bargaining agreements between Federal 

agencies and unions have provisions 

requiring the temporary promotion of 

employees officially assigned to a 

higher-graded position or to the duties 

of a higher-graded position when such 

assignment is made without use of 

competitive procedures. As provided for 

in 5 U.S.C. 7121, disagreements on 

application and interpretation of such 

provisions are subject to negotiated 

grievance procedures that provide for 

binding arbitration. 

Prior to 2004, arbitrators awarded 

backpay to employees who filed 

grievances after being assigned to higher 

graded duties and were not temporarily 

promoted, and those awards were not 

time limited to 120 days. For example, 

in Oklahoma City Air Logistics Center, 

Tinker AFB, OK and AFGE Local 9116, 

42 FLRA 62 (October 1991), the 

arbitrator directed the agency to provide 

a grievant a retroactive temporary 

promotion, with backpay, for the entire 

period of time in which the grievant 

performed work of a higher-graded 

position. The grievant, a WG–8 

employee, filed a grievance claiming he 

should have been promoted to the WG– 


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9 level. The arbitrator concluded the 

grievant was not wrongfully denied a 

permanent, competitive promotion to 

WG–9. The arbitrator found, however, 

the grievant ‘‘was temporarily assigned 

the grade-controlling duties of a WG–9’’ 

employee from February 1987 to 

February 1990. The arbitrator concluded 

the agency’s failure to promote the 

grievant temporarily violated the 

parties’ collective bargaining agreement 

and resulted in an unjustified or 

unwarranted personnel action. The 

arbitrator sustained the grievance, in 

part, and ordered the agency to make 

the grievant whole for the loss of WG– 

9 pay from March 29, 1987, to February 

2, 1990. The decision was challenged to 

the FLRA. The FLRA stated, where 

parties to a collective bargaining 

agreement provide for the temporary 

promotion of employees assigned to 

perform the work of higher-graded 

positions, an arbitrator may order 

temporary promotions, with backpay, in 

accordance with that agreement. The 

FLRA modified the arbitration award 

and sustained the grievance in part 

finding the grievant must be made 

whole for loss of WG–9 pay for a 2-year 

period beginning March 29, 1987. The 

FLRA directed the agency to request 

OPM to formally authorize the Agency 

to grant the grievant a retroactive 

temporary promotion, with backpay, 

from the end of the 2-year period to 

February 2, 1990. 

Another example concerns U.S. 

Department of the Army, Fort Polk, LA, 

and the National Association of 

Government Employees, Local R5–168, 

44 FLRA 121 (1992). In this case, the 

employee filed a grievance claiming 

that, under the parties’ collective 

bargaining agreement, the grievant was 

entitled to a temporary promotion for 

having performed the duties of a highergraded position for an extended period 

of time. The arbitrator sustained the 

grievance and awarded the grievant a 

retroactive temporary promotion with 

backpay. The FLRA stated, in order to 

award backpay, an arbitrator must find 

(1) the aggrieved employee was affected 

by an unjustified or unwarranted 

personnel action; (2) the personnel 

action directly resulted in the 

withdrawal or reduction of the 

grievant’s pay, allowance, or 

differentials; and (3) but for such action, 

the grievant otherwise would not have 

suffered the withdrawal or reduction. 

The FLRA found the arbitrator’s award 

satisfied these requirements for the Back 

Pay Act. Specifically, the Authority 

found the arbitrator made a properly 

supported award of backpay under the 

Back Pay Act when the arbitrator 

determined the agency denied the 

grievant a temporary promotion to 

which the grievant was entitled for 

having performed the duties of a highergraded position for an extended period 

of time. The award was modified to 

include the payment of interest on the 

award of backpay. 

Finally, in Social Security 

Administration and the American 

Federation of Government Employees, 

Local 220, 57 FLRA 115 (2001), the 

arbitrator found the agency violated the 

parties’ collective bargaining agreement 

by failing to temporarily promote 

certain employees. One employee who 

performed mentoring duties was 

temporarily promoted while the other 

employees who performed the same 

duties were not. The arbitrator found 

that the agency’s failure to temporarily 

promote the other employees who 

performed mentoring duties violated the 

parties’ collective bargaining agreement. 

The arbitrator concluded that the 

agency’s actions constituted an 

unjustified and unwarranted personnel 

action that directly resulted in a 

reduction of pay within the meaning of 

the Back Pay Act. The arbitrator 

sustained the grievance and ordered the 

agency to grant retroactive temporary 

promotion to the employees who were 

not temporarily promoted and were 

eligible for a temporary promotion 

under the parties’ collective bargaining 

agreement. The FLRA found denying an 

employee a temporary promotion to 

which the employee is entitled under a 

collective bargaining agreement 

constitutes an unjustified or 

unwarranted personnel action, and so, 

the arbitrator’s award of backpay in 

these circumstances was authorized 

under the Back Pay Act. 

On September 10, 2003, the FLRA, in 

accordance with 5 U.S.C. 7105(i), 

requested an advisory opinion from 

OPM regarding an interpretation of 5 

CFR part 335 and posed the following 

question: ‘‘Where an agency violates a 

collective bargaining agreement 

provision entitling employees to 

noncompetitive temporary promotions 

and an arbitrator grants a retroactive 

temporary promotion of more than 120 

days to remedy that violation with the 

retroactive promotion what is the 

applicability, if any, of the requirements 

of 5 CFR 335.103(c)(1)(i) that 

‘competitive procedures’ apply to 

promotions exceeding 120 days. If the 

requirements apply, what effect do they 

have on the arbitral remedy of a 

retroactive temporary promotion 

exceeding 120 days?’’ On February 27, 

2004, the OPM General Counsel 

provided a response to the FLRA. OPM 

noted: ‘‘Upon analysis of this issue, 

OPM concludes that 5 CFR 335.103 

applies and that the arbitration award in 

this matter is contrary to the regulatory 

requirement that executive agencies 

must apply competitive procedures for 

the purposes of implementing 

temporary promotions in excess of 120 

days.’’ 

The case before the FLRA that 

prompted the request to OPM for an 

advisory opinion was United States 

Department of Veterans Affairs Ralph 

H. Johnson Medical Center Charleston, 

South Carolina, and National 

Association of Government Employees, 

60 FLRA 46 (2004) (Johnson Medical 

Center). In this case, an arbitrator 

granted a retroactive temporary 

promotion greater than 120 days. A GS– 

7 employee filed a grievance alleging 

she had been performing the duties of 

a computer specialist, GS–9, for 

approximately 2 years. The grievant 

alleged the agency failed to promote her 

temporarily to the higher grade in 

violation of the parties’ collective 

bargaining agreement that provided for 

the noncompetitive temporary 

promotion of employees detailed to a 

higher-graded position for more than 30 

consecutive days. 

In ordering a remedy of backpay 

exceeding two years, the arbitrator 

rejected the agency’s argument that 

competitive procedures were required 

for temporary promotions exceeding 120 

days. Upon appeal to the FLRA, the 

agency alleged the remedy of a 

temporary promotion in excess of 120 

days was contrary to 5 CFR 335.103 

because competitive promotion 

procedures were not used to affect that 

promotion action. 

The FLRA rendered its decision 

relying upon OPM’s February 27, 2004, 

advisory opinion about 5 CFR 

335.103(c)(1)(i). OPM opined the 

arbitrator’s decision was contrary to a 

government-wide regulation by 

providing the grievant a retroactive 

temporary promotion exceeding 120 

days because there had been no 

competitive process. Based on this 

advisory opinion, the FLRA modified 

the award and ordered the agency to 

grant the grievant a retroactive 

temporary promotion with backpay for 

the difference between GS–7 and GS–9 

wage rate, effective August 1999, for a 

period of 120 days because there was no 

evidence that competitive procedures 

were applied in the promotion of the 

grievant. Furthermore, the FLRA 

decided there was no showing that a 

personnel action resulted in the 

withdrawal or reduction of the 

grievant’s pay and therefore the grievant 

was not entitled to back pay for the 


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5 In a concurrence to the Johnson Medical Center 

decision, Member Carol Waller Pope noted ‘‘I have 

concerns that OPM’s interpretation actually 

encourages agencies to violate, rather than comply 

with, § 335.103(c). Specifically, under OPM’s 

interpretation, an agency that ignores competitive 

procedures cannot be required to pay employees for 

higher-graded duties performed in excess of 120 

days, while an agency that complies with 

competitive procedures can be required to pay 

employees for those duties. This provides agencies 

a strong incentive to ignore competitive procedures 

when they want to assign employees higher-graded 

duties for more than 120 days.’’ 

period exceeding the 120-day 

limitation.5

Following its decision in 2004, the 

FLRA has found arbitration decisions 

deficient when the arbitrator ordered a 

temporary promotion with backpay for 

the pay differential for higher-graded 

work performed by an employee 

exceeding 120 days despite the lack of 

competitive procedures for the 

promotion. For example, in United 

States Department of the Treasury 

Internal Revenue Service and National 

Treasury Employees, 61 FLRA 667 

(2006), an arbitrator determined the 

agency violated the collective 

bargaining agreement by ‘‘failing to 

detail [the grievant] for performing 

work’’ at a higher grade. The arbitrator 

expressly rejected the agency’s claim 

that monetary relief could not extend 

beyond 120 days under 5 CFR 

335.103(c). In the arbitrator’s view, ‘‘[t]o 

deny a remedy longer tha[n] 120 days 

not only would be at odds with 

negotiated terms, but, in effect, would 

reward the agency with a monetary 

windfall for its persistent contractual 

transgression, despite grievances having 

been lodged, thereby subverting the 

deterrent value of the contract’s 

prohibitory language.’’ The agency filed 

exceptions with the FLRA. The FLRA 

noted that ‘‘a provision in a collective 

bargaining agreement establishing the 

requisite mandatory promotion is 

enforceable only to the extent consistent 

with civil service regulations pertaining 

to temporary promotions.’’ The FLRA 

also found controlling OPM’s advisory 

opinion in its 2004 Johnson Medical 

Center decision that placed a regulatory 

cap of 120 days on retroactive 

temporary promotions awarded by 

arbitrators without competition. As 

such, the FLRA set aside that portion of 

the award of backpay for a period 

exceeding 120 days. 

More recently, in United States 

Department of the Navy Commander, 

Navy Region Mid-Atlantic Naval 

Weapons Station Earle and 

International Association of Firefighters 

Local F–147, 72 FLRA 533 (2021), an 

arbitrator found that the grievants were 

temporarily assigned the duties of a 

higher-graded position. The arbitrator 

also found the agency violated the 

parties’ collective bargaining agreement, 

which required that employees 

temporarily assigned to higher-graded 

positions for two pay periods or more 

receive the higher rate of pay for the 

position to which they have been 

assigned. The agency challenged the 

amount of the backpay remedy noting it 

was contrary to 5 CFR 335.103(c)(1)(i). 

The FLRA once again found that ‘‘an 

award granting a temporary promotion 

is enforceable only to the extent that it 

is consistent with civil service 

regulations pertaining to such 

promotions.’’ Specifically, relying on 

OPM’s 2004 advisory opinion, the FLRA 

concluded ‘‘a retroactive temporary 

promotion and associated backpay of 

more than 120 days cannot be awarded 

unless the promotion was filled 

competitively.’’ The FLRA determined 

‘‘no evidence has established that the 

temporary promotion was competed. 

Therefore, to the extent that the backpay 

remedy exceeds 120 days, it is contrary 

to law.’’ 

II. Proposed Amendment 

OPM proposes amending 5 CFR part 

335, as summarized below, to clarify 

that a bargaining unit employee found, 

pursuant to a final order by an 

arbitrator, adjudicative body, or court, to 

have been detailed or temporarily 

promoted to a higher-graded position 

should be paid accordingly (i.e., higher 

compensation) for the entire time the 

employee performed the duties of the 

higher-graded position. This is limited 

to situations where an employee meets 

qualification and time-in-grade 

requirements established by OPM 

regulations, but the agency made the 

assignment without use of competitive 

procedures. For bargaining unit 

employees, this may include when a 

collective bargaining agreement 

provided for the temporary promotion 

of employees officially assigned to a 

higher-graded position or to the duties 

of a higher-graded position when such 

assignment is made without use of 

competitive procedures and the 

employee otherwise meets qualification 

and time-in-grade requirements. This 

amendment only applies when a third 

party has made a finding the employee 

is entitled to receive a retroactive 

temporary promotion. An adjudicative 

body could include, but not be limited 

to, a third party such as the U.S. Merit 

Systems Protection Board (MSPB) or the 

Equal Employment Opportunity 

Commission (EEOC). 

Similarly, the proposed amendment 

clarifies that, when a non-bargaining 

unit employee has been temporarily 

promoted to a higher-graded position as 

found by an adjudicative body or court, 

that employee should be paid 

accordingly (i.e., higher compensation) 

for the entire time performing these 

duties of a higher-graded position, 

pursuant to a final order by that 

adjudicative body or court. Similar to 

what is discussed earlier for bargaining 

unit employees, this is limited to 

situations where an employee meets 

qualification and time-in-grade 

requirements established by OPM 

regulations, but the agency made the 

assignment without use of competitive 

procedures. While the background 

focused on disputes related to collective 

bargaining agreements, OPM recognizes 

that non-bargaining unit employees may 

pursue grievances or complaints related 

to temporary promotions in forums 

outside of procedures found in 

collective bargaining agreements. The 

proposed regulatory change addresses 

such matters for the sake of consistency 

and fairness regardless of the 

employee’s bargaining unit status. This 

amendment only applies when a third 

party has made a finding the employee 

is entitled to receive a retroactive 

temporary promotion. An adjudicative 

body could include, but not be limited 

to, a third party such as the MSPB or the 

EEOC. 

Part 335—Promotion and Internal 

Placement 

Subpart A—General Provisions 

Section 335.103—Agency Promotion 

Program 

In § 335.103, agencies are authorized 

by OPM to make promotions under 

§ 335.102 to positions under the 

competitive service and to insure 

systematic means of selection for 

promotion according to merit. OPM 

proposes to amend § 335.103 by adding 

a new paragraph (c)(2)(iii) to read, 

‘‘Retroactive temporary promotions to 

higher-graded positions pursuant to a 

final order by an arbitrator, adjudicative 

body or court.’’ This added language 

will require agencies to pay an 

employee who has been found to have 

been noncompetitively, temporarily 

detailed to a higher-graded position at 

the higher grade even for a period of 

time that exceeds 120 days, pursuant to 

a final order by an arbitrator, 

adjudicative body, or court. As 

previously noted, this regulatory change 

would also apply to any employee, 

including non-bargaining unit 

employees, pursuant to a final order by 

an adjudicative body or court unrelated 

to procedures found in a collective 

bargaining agreement. For example, an 

employee may file a complaint with the 


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6 5 U.S.C. 2301: Merit system principles. 

7 5 U.S.C. 2302: Prohibited personnel practices. 

8The Merit System Principles: Keys to Managing 

the Federal Workforce (mspb.gov), October 2020, 

available at https://www.mspb.gov/studies/studies/ 

The_Merit_System_Principles_Keys_to_Managing_

the_Federal_Workforce_1371890.pdf. 

9See 5 U.S.C. 2301(b)(1). 

10 5 U.S.C. 7114(c) provides that ‘‘(1) An 

agreement between any agency and an exclusive 

representative shall be subject to approval by the 

head of the agency.’’ and ‘‘(2) The head of the 

agency shall approve the agreement within 30 days 

from the date the agreement is executed if the 

agreement is in accordance with the provisions of 

this chapter and any other applicable law, rule, or 

regulation (unless the agency has granted an 

exception to the provision.’’ 

11See NTEU, ‘‘Our Agencies,’’ https://

www.nteu.org/who-we-are/our-agencies. 

Equal Employment Opportunity 

Commission alleging discrimination on 

matters related to a temporary 

promotion exceeding 120 days. Finally, 

as previously discussed, this is limited 

to situations where an employee meets 

qualification and time-in-grade 

requirements established by OPM 

regulations, but the agency made the 

assignment without use of competitive 

procedures. 

OPM’s interpretation of 5 CFR 

335.103 continues to be that agencies 

covered by this regulation must apply 

competitive procedures for the purpose 

of implementing temporary promotions 

in excess of 120 days. This is consistent 

with the wording of regulatory language 

that has existed for decades OPM 

believes requiring competition for these 

opportunities when they exceed 120 

days supports merit system principles at 

5 U.S.C. 2301 and provides greater job 

opportunities to the workforce. 

The merit system principles (MSPs) 6

are nine basic standards that govern the 

management of the executive branch 

workforce and serve as the foundation 

of the Federal civil service. The U.S. 

Merit Systems Protection Board (MSPB) 

has noted the general themes of the 

MSPs and prohibited personnel 

practices 7 are: (1) Fairness—treating 

employees fairly in all aspects of their 

employment; (2) Protection—refraining 

from misuse of authority and protecting 

employees from harm, such as reprisal 

for the exercise of a legally protected 

right; and (3) Stewardship— 

management employees in the shortterm and long-term public interest.8 For 

example, MSP # 1 provides that 

‘‘Recruitment should be from qualified 

individuals from appropriate sources in 

an endeavor to achieve a work force 

from all segments of society, and 

selection and advancement should be 

determined solely on the basis of 

relative ability, knowledge, and skills, 

after fair and open competition which 

assures that all receive equal 

opportunity.’’ 9 The MSPB has noted 

MSP # 1 ‘‘[f]ocuses on attaining a wellqualified and representative workforce 

through open recruitment and fair, jobrelated assessment of applicants.’’ 

Therefore, OPM believes 5 CFR 335.103 

strikes the right balance between when 

competitive procedures are necessary 

and when they are not necessary, 

depending on the duration of the timelimited promotion. For situations where 

agencies have more immediate, shortterm needs of 120 days or less, it is 

appropriate for agencies to noncompetitively assign higher-graded 

duties to qualified employees to meet 

these needs. For situations where 

agencies have longer-term needs 

exceeding 120 days, use of competitive 

procedures is consistent with the 

purpose of MSP # 1. However, OPM also 

considers it unfair for employees to be 

assigned these higher-graded duties and 

not be compensated accordingly for the 

higher-graded duties when employee 

has effectively been detailed to a highergraded position for more than 120 days. 

OPM reminds agencies that they 

should not assign employees to perform 

higher-graded duties for periods 

exceeding 120 days such that the 

employee has been effectively detailed 

to a higher-grade position without 

following applicable competitive 

procedures. Under this proposed 

regulation, agencies are reminded that 

they may be required to provide higher 

compensation as a result of arbitrator, 

adjudicative or court decisions. OPM 

also reminds agencies, subject to the 

requirements of 5 CFR part 335, that 

competitive procedures should always 

be followed if the agency anticipates the 

assignment of higher-graded duties may 

exceed 120 days. If the agency 

incorrectly anticipates the assignment of 

higher graded duties will last 120 days 

or less but later determines the need 

exceeds 120 days, the agency must 

follow competitive procedures for 

assignment of such duties beyond 120 

days for any particular employee or 

assign the higher-graded work to 

another qualified employee, up to, but 

not exceeding 120 days. Finally, OPM 

reminds agencies to consider this when 

negotiating new collective bargaining 

agreement provisions regarding 

temporary promotions. Collective 

bargaining agreements must be 

consistent with requirements in 

government-wide regulations on this 

matter. In fact, newly negotiated 

collective bargaining agreements that 

allow non-competitive temporary 

promotion exceeding 120 days must be 

disapproved in agency head review for 

not complying with government-wide 

regulations.10 However, some 

agreements are silent on the length of 

the time-limited promotion and may not 

be in conflict with government-wide 

regulations as written. 

It should be noted 5 CFR part 335 

does not apply to positions in the 

Excepted Service. Therefore, the 2004 

OPM advisory opinion and the various 

FLRA decisions on this matter are not 

applicable to the issue of when 

competitive procedures must be 

followed for time-limited promotions in 

the Excepted Service. However, 

agencies with employees in the 

Excepted Service are subject to Merit 

System Principles and should be 

mindful of these principles when 

assigning Excepted Service employees 

the duties of a higher-graded position. 

III. Regulatory Analysis 

A. Statement of Need 

This rulemaking has two purposes. 

First, OPM intends to remind agencies 

that competitive procedures must be 

followed when assigning duties of a 

higher-graded position to employees for 

a period of time exceeding 120 days. 

Second, in recognition that there 

continue to be situations where 

competitive procedures are not followed 

by agencies subject to 5 CFR part 335, 

this rulemaking provides the possibility 

of remedial relief to employees covered 

by collective bargaining agreements 

requiring temporary promotions to nonbargaining unit employees when an 

arbitrator, adjudicative body or court 

finds the employee has been detailed or 

temporarily promoted to a highergraded position. 

On August 5, 2022, OPM received a 

petition from the National Treasury 

Employees Union (NTEU), which 

represents Federal workers in 34 

agencies and departments,11 to amend 

OPM regulations at 5 CFR 335.103 ‘‘to 

remove the existing 120-day cap on back 

pay for employees who perform higher 

graded work during noncompetitive 

temporary promotions and details.’’ 

NTEU noted that OPM’s existing 

regulation, as interpreted in a 2004 OPM 

advisory opinion, has led to ‘‘significant 

unfairness.’’ NTEU stated that prior to 

that advisory opinion, arbitrators had 

awarded back pay to employees who 

performed higher-graded duties. 

‘‘Arbitrators made employees whole for 

the time they spent performing such 

work, without any 120-day limitation.’’ 

NTEU noted that the 2004 decision of 

the FLRA abandoned years of precedent 

by limiting the back pay remedy for 

employees performing higher-graded 

duties to 120 days each year. NTEU 


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12See NFFE, About Us, https://nffe.org/about/. 

13See Executive Order 14003, Protecting the 

Federal Workforce (January 22, 2021). 

14OPM website, Compliance, What is our 

oversight responsibility?, available at https://

www.opm.gov/policy-data-oversight/oversightactivities/compliance/. 

correctly noted that FLRA’s decision 

‘‘was based entirely on [OPM’s] 

advisory opinion.’’ 

NTEU notes that ‘‘although OPM’s 

2004 interpretation of the regulation 

was in error, NTEU is not [asking OPM] 

to revisit its analysis.’’ NTEU stated it is 

proposing ‘‘instead that the regulation 

itself be changed to more clearly 

establish that employees detailed or 

temporarily promoted to a higher grade, 

or who perform higher-graded duties, 

should be paid accordingly, even if the 

detail, temporary promotion or 

performance of such duties exceeds 120 

days.’’ 

On November 3, 2022, the National 

Federation of Federal Employees 

(NFFE), which represents approximately 

110,000 government workers across the 

United States,12 provided suggestions to 

OPM on revisions to existing OPM 

regulations, including 5 CFR 

335.103(c)(1)(i). Specifically, NFFE 

requested revisions to ‘‘eliminate limit 

on back pay for temporary promotions 

to 120 days.’’ 

OPM’s interpretation that competitive 

procedures must be followed for 

temporary promotions exceeding 120 

days has not changed. Notwithstanding 

OPM’s current interpretation of the 

requirements of 5 CFR 335.103, 

however, OPM agrees that employees 

should be compensated accordingly 

when an agency has been found to be 

out of compliance with requirements of 

a collective bargaining agreement and 

understands that the current text of the 

regulations could provide greater 

clarity. Furthermore, OPM’s 2004 

advisory opinion should not be cited as 

a basis for agencies to disregard, 

whether intentionally or 

unintentionally, government-wide 

regulations on use of competitive 

procedures and collective bargaining 

agreement requirements regarding 

temporary promotions for performing 

duties of a higher-graded position. 

Therefore, OPM is proposing to modify 

5 CFR 335.103 to address these 

scenarios. 

This proposed modification reinforces 

the President’s recognition that Federal 

civil servants’ rights deserve to be 

protected. President Biden has stated 

that ‘‘[c]areer civil servants are the 

backbone of the Federal workforce, 

providing the expertise and experience 

necessary for the critical functioning of 

the Federal Government. It is the policy 

of the United States to protect, 

empower, and rebuild the Federal 

workforce.’’ 13 NTEU notes that it 

supports merit-based competition for 

long-term promotions or details to 

positions that are properly classified at 

a higher grade to ensure that the merit 

system principles of fair and open 

competition are met. 

NTEU notes that ‘‘[i]n practice, many 

of these cases arise where higher-graded 

duties are assigned to employees on a 

different, lower-graded position 

description, due to staffing shortages, 

budget constraints, retirements, etc. 

Agency managers, who are often tasked 

with delivering the agency’s mission 

without the resources to do so, simply 

assign the higher graded work to 

whomever is available and convenient.’’ 

NTEU notes that ‘‘these employees are 

precluded from any remedial relief 

beyond 120 days—not because the 

inequity has ceased to exist, but because 

the relevant regulation has been 

reinterpreted since 2004 to undermine, 

rather than strengthen, merit system 

principles.’’ OPM believes the proposed 

modification is a reasonable solution to 

address those situations where an 

agency may assign higher-graded duties 

to an employee without using 

competitive procedures and where a 

collective bargaining agreement requires 

a temporary promotion. 

B. Regulatory Alternatives 

An alternative to this rulemaking is to 

not issue a regulation and to continue 

the possibility of agencies not using 

competitive procedures when assigning 

an employee the duties of a highergraded position over 120 days because 

of an absence of clarification. As a 

result, employees may not have an 

opportunity to be made whole for time 

performing higher-graded duties in 

excess of 120 days even if the employee 

challenges the agency action in a 

grievance or complaint process. OPM 

has determined this is not a viable 

option. As NTEU noted, an inequity 

exists and employees are precluded 

from any remedial relief beyond 120 

days because the relevant regulation has 

been reinterpreted since 2004 to 

undermine, rather than strengthen, 

merit system principles. 

Another regulatory alternative is to 

address this issue through OPM’s 

oversight function. OPM’s statutory 

responsibility to oversee the Federal 

personnel system encompasses 

assessment of compliance with merit 

system principles, and supporting laws, 

rules, regulations, Executive orders, and 

OPM standards, as well as the 

effectiveness of personnel policies, 

programs, and operations.14 The legal 

authority for OPM oversight is 5 U.S.C. 

1104(b)(2) and 5 CFR parts 5 and 10. 

Under this authority, OPM can evaluate 

the effectiveness of agency personnel 

policies, programs and operations and 

agency compliance with and 

enforcement of applicable laws, rules, 

regulations, and OPM directives. OPM 

can also direct corrective action where 

appropriate. 

While OPM can, through its oversight 

process, identify situations where an 

agency is not complying with the 

requirement to use competitive 

procedures for time-limited promotions 

that exceed 120 days, OPM’s 

enforcement process may not provide 

timely relief to employees who are 

impacted by an agency’s failure to 

follow OPM procedures on time-limited 

promotions. Furthermore, based on 

OPM’s 2004 advisory opinion, although 

OPM may direct, as part of its oversight 

process, an agency to follow competitive 

procedures for time-limited promotions 

exceeding 120 days, this would not 

provide any monetary relief for 

employees covered by collective 

bargaining agreements that require timelimited promotions and are identified 

by OPM as situations where OPM’s 

regulations were not properly followed. 

C. Impact 

OPM is issuing this proposed 

regulation to authorize a retroactive 

temporary promotion when a 

competitive service employee, 

effectively, has been detailed or 

temporarily promoted to higher grade 

duties of a higher-graded position if a 

collective bargaining agreement requires 

it and the employee has been assigned 

these duties outside of competitive 

hiring procedures, as found pursuant to 

a final order by an arbitrator, 

adjudicative body, or court. By 

authorizing a retroactive promotion in 

these situations, OPM affirms that an 

employee should be paid accordingly 

for the entire time performing these 

duties of a higher-graded position. In 

addition, a non-bargaining unit 

competitive service employee who is 

temporarily promoted to higher grade 

duties of a higher-graded position 

should be paid accordingly for the 

entire time performing these duties of a 

higher-graded position, as found 

pursuant to a final order by an 

adjudicative body or court. 

As discussed earlier, OPM reminds 

agencies to use competitive procedures 

when assigning an employee the duties 

of a higher-graded position when the 

assignment exceeds 120 days. This is 


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89326 Federal Register / Vol. 88, No. 247 / Wednesday, December 27, 2023 / Proposed Rules 

not a new requirement and simply 

reinforces what agencies, subject to 5 

CFR part 335, should already be doing 

and should have no impact. However, in 

those situations where an agency does 

not meet this regulatory requirement, it 

reinforces the commitment an agency 

has already made as part of the 

collective bargaining process under 5 

U.S.C. chapter 71. It also provides all 

employees, whether bargaining unit or 

non-bargaining unit, an opportunity to 

be made whole if an agency does not 

properly follow policies related to 

temporary promotions and pursues a 

grievance or complaint in applicable 

grievance and complaint processes 

which may be available to employees. 

D. Costs 

This proposed rule will affect the 

operations of over 80 non-postal Federal 

agencies in the Executive Branch— 

ranging from cabinet-level departments 

to small independent agencies—with 

one or more labor organizations certified 

by the FLRA as the exclusive 

representative of employees in an 

appropriate unit pursuant to 5 U.S.C. 

7112. We do not believe this proposed 

rule should substantially increase the 

ongoing administrative costs to agencies 

(including the administrative costs of 

administering the program) as this 

rulemaking leverages existing 

procedures and requires agencies to 

comply with collective bargaining 

agreements that they have made with 

unions. Furthermore, OPM believes 

costs should be negligible as we 

anticipate agencies will leverage 

existing resources to implement the 

reminders in this rulemaking and the 

regulatory requirements. Ultimately, 

costs are likely to vary from agency to 

agency since some agencies have 

collective bargaining unit agreements 

with language regarding the process for 

detailing bargaining unit employees to a 

higher graded position for more than 

120 days. Furthermore, some agencies 

are currently already closely adhering to 

OPM regulations in § 335.103. 

With the above in mind, we estimate 

this rulemaking will require agencies to 

review policies on time-limited 

promotions subject to 5 CFR part 335; 

update these policies if needed; and 

provide reminders and, if necessary, 

training to implement this proposed 

rule and reinforce existing requirements 

in 5 CFR part 335. For the purpose of 

this cost analysis, the assumed staffing 

for Federal employees performing the 

work required by the regulations in part 

335 is one executive; one GS–15, step 5; 

a GS–14, step 5; and one GS–13, step 5 

in the Washington, DC, locality area. 

The 2023 basic rate of pay for an 

executive at an agency with a certified 

SES performance appraisal system is 

$235,600 annually, or $113.27 per hour. 

For General Schedule employees in the 

Washington, DC, locality area, the 2023 

pay table rates are $176,458 annually 

and $84.55 hourly for GS–15, step 5; 

$150,016 annually and $71.88 for GS– 

14; and $126,949 annually and $60.83 

hourly for GS–13, step 5. We assume 

that the total dollar value of labor, 

which includes wages, benefits, and 

overhead, is equal to 200 percent of the 

wage rate, resulting in assumed hourly 

labor costs of $226.54 for an executive; 

$169.10 for a GS–15, step 5; $143.76 for 

a GS–14, step 5; and $121.66 for a GS– 

13, step 5. In order to comply with the 

regulatory changes in this proposed rule 

and the reminder in this preamble to 

follow competitive procedures for timelimited promotions exceeding 120 days, 

affected agencies will need to review 

and update (if applicable) their policies, 

procedures and develop appropriate 

training or communications to 

appropriate personnel. Agencies are 

reminded to review 5 CFR part 335, 

agency merit promotion plans, and 

related guidance to ensure compliance. 

Agencies are also encouraged to 

communicate with managers, 

supervisors, and agency staff who are 

responsible for completing actions 

related to part 335. We estimate that this 

will require an average of 10 hours of 

work by employees with an average 

hourly cost of $165.26. This would 

result in estimated costs of about $1,653 

per agency, and about $132,212 in total 

government-wide. If an agency follows 

existing requirements to use competitive 

procedures for time-limited promotions 

exceeding 120 days, there should be no 

need for employees to file grievances 

ending in binding arbitration that could 

order backpay with interest. To the 

extent that grievances are filed and 

arbitration decisions order backpay, the 

costs will vary by agency depending on 

the number of employees impacted, the 

salaries of these employees, and the 

amount of time performing the highergraded duties beyond 120 days. OPM 

does not have data to make a 

determination on potential costs related 

to arbitration decisions implementing 

the proposed regulatory language. OPM 

requests comments on the 

implementation and impacts of this 

proposed rule. 

E. Benefits 

This proposed rule has several 

important benefits. First, it supports 

merit system principles by reminding 

agencies to use competitive procedures 

for time-limited promotions exceeding 

120 days. As discussed earlier, OPM 

believes 5 CFR 335.103 strikes the right 

balance between when competitive 

procedures are necessary and when they 

are not necessary, depending on the 

duration of the time-limited promotion. 

OPM believes that fair and open 

competition is appropriate for 

performing duties for a period of time 

exceeding 120 days. 

OPM also agrees that it is unfair for 

employees to be assigned these highergraded duties and not be compensated 

accordingly when assignment of these 

duties exceeds 120 days and a third 

party orders the agency to compensate 

the employee accordingly. Therefore, 

the second benefit of this rulemaking is 

that it facilitates agencies’ provision of 

monetary relief to employees who 

perform duties of a higher-graded 

position for more than 120 days where 

the agency has failed to follow the 

requirements of 5 CFR part 335. OPM 

expects this proposed rule to further 

incentivize agencies to follow proper 

procedures when assigning highergraded duties and to honor the 

commitment agencies made in their 

collective bargaining agreement when 

they agreed to temporarily promote 

employees. This proposed rule not only 

reinforces merit system principles but 

reinforces the agency’s obligations 

under the Federal Service LaborManagement Relations Statute. 

IV. Request for Comments 

OPM requests comments on the 

implementation and impacts of this 

proposed rule in general. Such 

information will be useful for better 

understanding the effect of these 

proposed revisions on time-limited 

promotions impacted by collective 

bargaining agreements. The type of 

information in which OPM is interested 

includes, but is not limited to, the 

following: 

• Each year, out of the total number 

of grievances or administrative 

complaints filed by bargaining unit 

employees, what percentage of those 

grievances or other types of complaints 

claim appropriate compensation was 

denied after being non-competitively 

placed on time-limited promotions 

exceeding 120 days and despite 

collective bargaining agreement 

requirements? 

• Each year, out of the total number 

of administrative grievances or 

complaints filed by non-bargaining unit 

employees, what percentage of those 

administrative grievances or other types 

of complaints claim commensurate 

compensation was denied after being 

non-competitively placed on timelimited promotions exceeding 120 days? 


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Federal Register / Vol. 88, No. 247 / Wednesday, December 27, 2023 / Proposed Rules 89327 

• OPM also requests comment on the 

options available to non-bargaining unit 

employees to seek redress after being 

non-competitively placed on a timelimited promotion exceeding 120 days 

without commensurate pay. Based on 

comments received, OPM could 

consider exercising its authority to 

confer jurisdiction on an adjudicative 

body to evaluate complaints filed by 

non-bargaining unit employees to the 

extent OPM can confer such 

jurisdiction. 

Regulatory Review 

Executive Orders 13563, 12866, and 

14094 direct agencies to assess all costs 

and benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). A regulatory impact analysis 

must be prepared for major rules with 

effects of $200 million or more in any 

one year. This rulemaking does not 

reach that threshold; however, OMB has 

designated the rule as a ‘‘significant 

regulatory action’’ under Executive 

Order 14094. 

Regulatory Flexibility Act 

The Director of OPM certifies that this 

proposed rule will not have a significant 

economic impact on a substantial 

number of small entities. 

Federalism 

This proposed rule will not have 

substantial direct effects on the States, 

on the relationship between the 

National Government and the States, or 

on distribution of power and 

responsibilities among the various 

levels of government. Therefore, in 

accordance with Executive Order 13132, 

it is determined that this proposed rule 

does not have sufficient federalism 

implications to warrant preparation of a 

Federalism Assessment. 

Civil Justice Reform 

This proposed rule meets the 

applicable standard set forth in 

Executive Order 12988. 

Unfunded Mandates Reform Act of 1995 

This proposed rule will not result in 

the expenditure by state, local, and 

tribal governments, in the aggregate, or 

by the private sector, of $100 million or 

more in any year and it will not 

significantly or uniquely affect small 

governments. Therefore, no actions were 

deemed necessary under the provisions 

of the Unfunded Mandates Reform Act 

of 1995. 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501–3521) 

This regulatory action is not expected 

to impose any reporting or 

recordkeeping requirements under the 

Paperwork Reduction Act. 

List of Subjects in 5 CFR Part 335 

Government employees. 

Office of Personnel Management. 

Kayyonne Marston, 

Federal Register Liaison. 

Accordingly, for the reasons stated in 

the preamble, OPM proposes to amend 

5 CFR part 335 as follows: 

PART 335—Promotion and Internal 

Placement 

■ 1. The authority citation for part 335 

continues to read as follows: 

Authority: 5 U.S.C. 2301, 2302, 3301, 3302, 

3330; E.O. 10577, E.O. 11478, 3 CFR 1966– 

1970, Comp., page 803, unless otherwise 

noted, E.O. 13087; and E.O. 13152, 3 CFR 

19554–58 Comp., p.218; 5 U.S.C. 3304(f), and 

Pub. L. 106–117, and 5 CFR 2.2 and 7.1. 

Subpart A—General Provisions 

■ 2. Amend § 335.103 by adding new 

paragraph (c)(2)(iii) to read as follows: 

§ 335.103 Agency promotion programs. 

* * * * * 

(c) * * * 

(2) * * * 

(iii) A retroactive temporary 

promotion to a higher-graded position 

pursuant to a final order by an 

arbitrator, adjudicative body, or court. 

* * * * * 

[FR Doc. 2023–28458 Filed 12–26–23; 8:45 am] 

BILLING CODE 6325–39–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 987 

[Doc. No. AMS–SC–23–0058] 

Domestic Dates Produced or Packed in 

Riverside County, California; 

Decreased Assessment Rate 

AGENCY: Agricultural Marketing Service, 

Department of Agriculture (USDA). 

ACTION: Proposed rule. 

SUMMARY: This proposed rule would 

implement a recommendation from the 

California Date Administrative 

Committee (Committee) to decrease the 

assessment rate established for the 

2023–2024 and subsequent crop years. 

The proposed assessment rate would 

remain in effect indefinitely unless 

modified, suspended, or terminated. 

DATES: Comments must be received by 

January 26, 2024. 

ADDRESSES: Interested persons are 

invited to submit written comments 

concerning this proposed rule. 

Comments can be sent to the Docket 

Clerk, Market Development Division, 

Specialty Crops Program, AMS, USDA, 

1400 Independence Avenue SW, STOP 

0237, Washington, DC 20250–0237. 

Comments can also be submitted to the 

Docket Clerk electronically by Email: 

MarketingOrderComment@usda.gov or 

via the internet at: https://

www.regulations.gov. Comments should 

reference the document number and the 

date and page number of this issue of 

the Federal Register. Comments 

submitted in response to this proposed 

rule will be included in the record and 

will be made available to the public and 

can be viewed at: https://

www.regulations.gov. Please be advised 

that the identity of the individuals or 

entities submitting the comments will 

be made public on the internet at the 

address provided above. 

FOR FURTHER INFORMATION CONTACT: 

Bianca Bertrand, Marketing Specialist, 

or Gary Olson, Chief, West Region 

Branch, Market Development Division, 

Specialty Crops Program, AMS, USDA; 

Telephone: (503) 326–2724, or Email: 

BiancaM.Bertrand@usda.gov or 

GaryD.Olson@usda.gov. 

Small businesses may request 

information on complying with this 

regulation by contacting Richard Lower, 

Market Development Division, Specialty 

Crops Program, AMS, USDA, 1400 

Independence Avenue SW, STOP 0237, 

Washington, DC 20250–0237; 

Telephone: (202) 720–2491, or Email: 

Richard.Lower@usda.gov. 

SUPPLEMENTARY INFORMATION: This 

action, pursuant to 5 U.S.C. 553, 

proposes to amend regulations issued to 

carry out a marketing order as defined 

in 7 CFR 900.2(j). This proposed rule is 

issued under Marketing Order No. 987, 

as amended (7 CFR part 987), regulating 

the handling of domestic dates 

produced or packed in Riverside 

County, California. Part 987 referred to 

as the ‘‘Order’’ is effective under the 

Agricultural Marketing Agreement Act 

of 1937, as amended (7 U.S.C. 601–674), 

hereinafter referred to as the ‘‘Act.’’ The 

Committee locally administers the 

Order and is comprised of producers 

and producer-handlers operating within 

the area of production. 

The Agricultural Marketing Service 

(AMS) is issuing this proposed rule in 

conformance with Executive Orders 

12866, 13563, and 14094. Executive 

Orders 12866 and 13563 direct agencies 

to assess all costs and benefits of 


ddrumheller on DSK120RN23PROD with PROPOSALS1