[Federal Register Volume 73, Number 25 (Wednesday, February 6, 2008)]
[Proposed Rules]
[Pages 6857-6858]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-2122]


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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. 73, No. 25 / Wednesday, February 6, 2008 / 
Proposed Rules

[[Page 6857]]


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OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 300

RIN 3206-AL18


Time-in-Grade Rule Eliminated

AGENCY: Office of Personnel Management.

ACTION: Proposed rule.

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SUMMARY: The Office of Personnel Management (OPM) proposes eliminating 
the time-in-grade restriction on advancement to competitive service 
positions in the General Schedule. Currently, employees in competitive 
service General Schedule positions at grades 5 and above must serve 52 
weeks in grade before becoming eligible for promotion to the next grade 
level. Abolishing the restriction would eliminate the 52-week service 
requirement. If the requirement is eliminated, an employee must 
continue to meet occupational qualification standard requirements, and 
any additional job-related qualification requirements, established for 
the position.

DATES: Comments must be received on or before April 7, 2008.

ADDRESSES: You may submit comments, identified by RIN number ``3206-
AL18,'' using any of the following methods:
    Federal eRulemaking Portal: http://www.regulations.gov. Follow the 
instructions for submitting comments.
    E-mail: <a href="/cdn-cgi/l/email-protection#61040c110d0e18210e110c4f060e17"><span class="__cf_email__" data-cfemail="eb8e869b878492ab849b86c58c849d">[email protected]</span></a>. Include ``RIN 3206-AL18, Time in Grade'' in 
the subject line of the message.
    Fax: (202) 606-2329.
    Mail: Mark Doboga, Deputy Associate Director, Center for Talent and 
Capacity Policy, U.S. Office of Personnel Management, Room 6551, 1900 E 
Street, NW., Washington, DC 20415-9700.
    Hand Delivery/Courier: Mark Doboga, Deputy Associate Director, 
Center for Talent and Capacity Policy, U.S. Office of Personnel 
Management, Room 6551, 1900 E Street, NW., Washington, DC 20415-9700.

FOR FURTHER INFORMATION CONTACT: Ms. Christina Gonzales Vay by 
telephone (202) 606-0960; by fax (202) 606-2329; by TTY (202) 418-3134; 
or by e-mail <a href="/cdn-cgi/l/email-protection#92f1fae0fbe1e6fbfcf3bce4f3ebd2fde2ffbcf5fde4"><span class="__cf_email__" data-cfemail="cdaea5bfa4beb9a4a3ace3bbacb48da2bda0e3aaa2bb">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: Federal employees in General Schedule (GS) 
competitive service positions at grades 5 and above qualify for 
promotions to higher grades if they meet two criteria: (1) Have at 
least one year of specialized experience equivalent in difficulty to 
the next lower grade level or (in some cases) the equivalent education; 
and (2) have service of at least 52 weeks at their current grade (known 
as ``time in grade''). We are proposing eliminating the time-in-grade 
restriction as a prerequisite for promotion.
    The time-in-grade restriction originated in a statute called the 
Whitten Amendment. The Whitten Amendment was passed by Congress in 1952 
during the Korean conflict. The statute was created to prevent the 
permanent buildup of the civil service with expanded grade levels 
during the Korean conflict, as had happened during World War II.
    The Whitten Amendment consisted of a series of personnel controls. 
The controls included a requirement to make all promotions and 
appointments on a temporary basis to simplify adjusting personnel 
actions downward at the end of the conflict; to conduct an annual 
survey of positions to assure each was properly graded; and to 
implement the time-in-grade restrictions to prevent excessively rapid 
promotions of Federal employees in GS competitive and excepted service 
positions.
    Before the Whitten Amendment expired, Congress sought a review by 
the predecessor of OPM, the Civil Service Commission (Commission), to 
determine whether to retain any of the provisions in the amendment. The 
Commission reported that the time-in-grade restriction for competitive 
service GS positions had been placed in regulation and would continue 
even if the Whitten Amendment expired. The law expired September 14, 
1978, and time in grade continues in regulation for competitive service 
GS positions.
    On June 14, 1995 (59 Federal Register (FR) 30717) and January 10, 
1996 (60 FR 2546), we published proposals to eliminate time in grade. 
Because almost 12 years have passed since publication of the first 
proposal, we are providing interested individuals another opportunity 
to comment.

Reasons for Proposed Elimination

    We propose eliminating time in grade for the following reasons:

--Grade Control No Longer Needed. When the Whitten Amendment was first 
enacted, no effective means existed to prevent employees from advancing 
quickly through the grades. Today, Governmentwide qualification 
standards, established by OPM, are in place for competitive service GS 
positions. (The OPM Operating Manual Qualification Standards for 
General Schedule Positions is available on the OPM Web site (http://www.opm.gov)).

    Eliminating the time-in-grade restriction will not have an impact 
on how agencies now use qualification standards to evaluate candidates. 
Currently, candidates may demonstrate possession of either experience 
of at least one year (acquired through any paid or unpaid work or non-
work setting or situation in which the experience enabled the 
individual to acquire the required competencies/knowledge, skills, or 
abilities) and/or the appropriate level of education as outlined in the 
OPM Operating Manual. Agencies must continue to ensure that candidates 
for promotion possess the required level of experience at the 
appropriate grade level (as defined in the classification standards) 
and/or meet the education requirements.
    In addition to using OPM qualification standards and/or education 
levels, agencies also have the discretion to establish additional 
requirements beyond the OPM qualification standards that employees must 
meet for promotions. Many have done so. Examples of requirements 
include the specific level of performance to meet, possession of 
specific job-related competencies/knowledge, skills, and abilities, 
evidence that higher level duties exist, and/or availability of funds.
    Eliminating the time-in-grade requirement will not eliminate the 
agency's determination on whether a candidate is qualified to perform 
the essential higher level duties. Rather, elimination of the 52-week 
time in grade waiting period reinforces the principle

[[Page 6858]]

that promotions are based on an individual's ability to perform the 
requirements of the position (i.e., merit) not longevity.

--Performance Management Accountability Continues. Managers are 
responsible for ensuring there are sound performance management 
criteria based on job-related factors at the appropriate levels of 
proficiency when considering promotions of employees to higher graded 
duties. Eliminating the time-in-grade requirement will help dispel the 
myth that promotion automatically follows a set period of time spent in 
a particular grade, and instead emphasizes the importance of the 
qualification requirements, as well as the quality and level of 
performance needed to succeed at the next higher grade level.

--Safeguards Are Now in Place. When time in grade expired in the 
Whitten Amendment, the merit systems principles (title 5, United States 
Code (U.S.C.), section 2301) and prohibited personnel practices (5 
U.S.C 2302) had not been enacted as statutory provisions or codified in 
the United States Code. Alleged violations may be pursued and 
investigated and corrective or disciplinary actions may be warranted.
--Inconsistencies Exist Among Federal Employees. Time in grade applies 
to competitive service GS employees, but does not apply to competitive 
service employees under other pay plans, including employees in Wage 
Grade positions. Time in grade does not apply to those competitive 
service GS employees who apply for other competitive service positions 
through a competitive examination. The time-in-grade restriction does 
not apply to excepted service GS employees, although individual 
agencies can, at its discretion, require time in grade for their 
excepted service employees. This disparate treatment of employees under 
varying appointments and pay plans highlights the inequities of 
retaining time in grade.

    Eliminating time in grade enables any Federal competitive service 
GS employee (regardless of current occupation or grade), who meets the 
qualification standards for a particular position, to become eligible 
for promotion to a competitive service GS position. This can be done 
through a competitive examination or under an agency's internal merit 
promotion procedures, as applicable. Elimination also gives agencies 
the flexibility to continue requiring employees to meet a specified 
amount of time in their current grade, regardless of their 
qualifications.
    We do not believe time-in-grade elimination will lead to a large 
number of excessively rapid promotions Governmentwide. Over the years, 
many demonstration projects have waived the use of time in grade, 
especially when pay banding was incorporated. In these cases, agencies 
imposed their own internal policies regarding promotions which were 
similar to time in grade. In the China Lake demonstration project, for 
example, OPM data indicate workers progressed through the bands at a 
slower rate, at least initially, than people in the GS pay scale. (To 
illustrate, an employee in a competitive service GS position can 
sometimes receive a pay raise, a within-grade increase, and a promotion 
in the same year and do so again in consecutive years, whereas a more 
disciplined pay system makes movement through the band less automatic 
and rapid.) Moreover, we are not aware of any widespread abuses 
concerning those positions that do not have a time-in-grade 
requirement.

--Labor Market Challenges Exist. Competitive pressures in the labor 
market challenge the Federal Government's ability to recruit, select, 
and retain highly qualified employees. These pressures did not exist 
during the time of the Whitten Amendment. Applying time in grade 
sometimes results in eliminating from consideration candidates who are 
in fact able to successfully perform the essential duties of the 
position. The merit system requires determining the qualifications of 
individuals; identifying appropriate recruitment sources; ensuring 
there is representation of all segments of society in the workforce; 
determining that selection and advancement are based solely on relative 
competencies/knowledge, skills, and ability; and ensuring that all 
receive equal opportunity through fair and open competition. Agencies 
already must meet these requirements; time in grade does not enhance 
agency ability to recruit, select, and retain the broadest pool 
possible of qualified Federal employees. In fact, time in grade can 
limit the pool of possible qualified candidates. The proposal to 
eliminate time in grade is consistent with upholding merit principles, 
and has the added benefit of helping agencies recruit and hire in tight 
labor market conditions.
--Agencies Gain Flexibility. Eliminating the time-in-grade requirement 
will simplify OPM and agency operations. It will remove administrative 
burdens because agencies will no longer need OPM approval of training 
agreements that provide for consecutive accelerated promotions. Also, 
agencies will be able to implement flexibilities, such as pay banding 
or new ideas proposed in demonstration projects, without being required 
to obtain approval from OPM to waive time in grade.

Regulatory Flexibility Act

    I certify that this regulation will not have a significant economic 
impact on a substantial number of small entities because it affects 
only certain Federal employees.

E.O. 12866, Regulatory Review

    This rule has been reviewed by the Office of Management and Budget 
in accordance with Executive Order 12866.

List of Subjects in 5 CFR Part 300

    Freedom of information, Government employees, Reporting and 
recordkeeping requirements, Selective Service System.

U.S. Office of Personnel Management.
Linda M. Springer,
Director.
    Accordingly, OPM proposes to amend 5 CFR part 300 as follows:

PART 300--EMPLOYMENT (GENERAL)

    1. Revise the authority citation for part 300 to read as follows:

    Authority: 5 U.S.C. 552, 3301, 3302; E.O. 10577, 3 CFR, 1954-
1958 Comp., page 218, unless otherwise noted.
    Secs. 300.101 through 300.104 also issued under 5 U.S.C. 7201, 
7204, 7701; E.O. 11478, 3 CFR, 1966-1970 Comp., page 803.
    Sec. 300.301 also issued under 5 U.S.C. 1104 and 3341.
    Secs. 300.401 through 300.408 also issued under 5 U.S.C. 
1302(c), 2301, and 2302.
    Secs. 300.501 through 300.507 also issued under 5 U.S.C. 
1103(a)(5).

Subpart F--[Removed and Reserved]

    2. Remove and reserve subpart F, consisting of Sec. Sec.  300.601 
through 300.606.

[FR Doc. E8-2122 Filed 2-5-08; 8:45 am]
BILLING CODE 6325-38-P


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