[Federal Register Volume 59, Number 249 (Thursday, December 29, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-32000]
Federal Register / Vol. 59, No. 249 / Thursday, December 29, 1994 /
[[Page Unknown]]
[Federal Register: December 29, 1994]
VOL. 59, NO. 249
Thursday, December 29, 1994
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 335
Merit Promotion Program
AGENCY: Office of Personnel Management.
ACTION: Interim rulemaking with request for comments.
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SUMMARY: The Office of Personnel Management (OPM) is issuing interim
regulations to continue existing requirements under which agencies
conduct merit promotion and internal placement programs in the
competitive service. At present, these requirements are in
provisionally retained chapter 335 of the former Federal Personnel
Manual and related issuances. Adoption of this interim rule will
prevent a lapse in Governmentwide requirements when chapter 335 expires
on December 31, 1994.
DATES: Interim rules effective on January 1, 1995. Comments must be
submitted on or before February 27, 1995.
ADDRESSES: Send or deliver written comments to Leonard R. Klein,
Associate Director for Career Entry, Office of Personnel Management,
Room 6F08, 1900 E Street, NW., Washington, DC 20415 .
FOR FURTHER INFORMATION CONTACT:
Lee Edwards on 202-606-0830, TDD 202-606-0023, or FAX 202-606-2329.
SUPPLEMENTARY INFORMATION: Agencies are authorized by 5 CFR
Sec. 335.103 to promote competitive service employees to positions for
which the agency has adopted and is administering a program designed to
insure a systematic means of selection for promotion according to
merit. The promotion program must conform with the standards and
requirements of the Office of Personnel Management (OPM), which
currently are in provisionally retained chapter 335 of the former
Federal Personnel Manual (FPM).
OPM 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.
OPM is adopting in 5 CFR Sec. 335.103 the existing promotion
program requirements in FPM chapter 335, sections 1-4, 1-5, and 1-6,
amended by FPM Letter 335-16 dated November 18, 1991, and FPM
Provisional Notice 335-1 dated July 20, 1994. We made conforming
changes to reflect final rules on time-limited promotions that replaced
authority for temporary and term promotions (58 FR 59345, November 9,
1993). We also made editorial clarifications, such as recognizing the
longstanding practice of allowing career ladder promotions of
individuals appointed under direct hire and noncompetitive appointments
or conversions.
Incorporating these existing requirements in part 335 will provide
continued authority for agency merit promotion and internal placement
programs and insure that agency programs continue to operate under the
same set of Governmentwide requirements. However, OPM is continuing to
review these requirements for possible revisions that would enable
agencies to conduct programs more efficiently and fairly.
Waiver of Notice of Proposed Rulemaking and Delay in Effective Date
Pursuant to 5 U.S.C. 553(b)(3)(B), I find that good cause exists
for waiving the general notice of proposed rulemaking. Also, pursuant
to 5 U.S.C. 553(d)(3), I find that good cause exists to make this
amendment effective in less than 30 days. This regulation is effective
immediately to continue existing longstanding rules from the Federal
Personnel Manual under which agencies are authorized to administer
internal selection programs based on merit. It would be contrary to the
public interest to allow these Governmentwide rules to expire when the
Manual expires on December 31, 1994. The delay in the effective date is
being waived to prevent any lapse in coverage of these rules.
Regulatory Flexibility Act
I certify that this regulation will not have a significant economic
impact on a substantial number of small entities because it pertains
only to Federal employees and agencies.
List of Subjects in 5 CFR Part 335
Government employees.
U.S. Office of Personnel Management.
James B. King,
Director.
Accordingly, OPM is amending part 335 of title 5, Code of Federal
Regulations, as follows:
PART 335--PROMOTION AND INTERNAL PLACEMENT
1. The authority citation for part 335 is revised to read as
follows:
Authority: 5 U.S.C. 3301, 3302, 3329, and E.O. 10577 (3 CFR
1954-58 Comp., p. 218).
2. Section 335.103 is revised to read as follows:
Sec. 335.103 Agency promotion programs.
(a) Merit promotion plans. Except as otherwise specifically
authorized by OPM, an agency may make promotions under Sec. 335.102 of
this part only to positions for which the agency has adopted and is
administering a program designed to insure a systematic means of
selection for promotion according to merit. These programs shall
conform to the requirements of this section.
(b) Merit promotion requirements. (1) Requirement 1. Each agency
must establish procedures for promoting employees which are based on
merit and are available in writing to candidates. Agencies must list
appropriate exceptions, including those required by law or regulation,
as specified in paragraph (c) of this section. Actions under a
promotion plan--whether identification, qualification, evaluation, or
selection of candidates--shall be made without regard to political,
religious, or labor organization affiliation or nonaffiliation, marital
status, race, color, sex, national origin, nondisqualifying physical
handicap, or age, and shall be based solely on job-related criteria.
(2) Requirement 2. Areas of consideration must be sufficiently
broad to ensure the availability of high quality candidates, taking
into account the nature and level of the positions covered. Agencies
must also ensure that employees within the area of consideration who
are absent for legitimate reason, e.g., on detail, on leave, at
training courses, in the military service, or serving in public
international organizations or on Intergovernmental Personnel Act
assignments, receive appropriate consideration for promotion.
(3) Requirement 3. To be eligible for promotion or placement,
candidates must meet the minimum qualification standards prescribed by
the Office of Personnel Management (OPM). Methods of evaluation for
promotion and placement, and selection for training which leads to
promotion, must be consistent with instructions in part 300, subpart A,
of this chapter. Due weight shall be given to performance appraisals
and incentive awards.
(4) Requirement 4. Selection procedures will provide for
management's right to select or not select from among a group of best
qualified candidates. They will also provide for management's right to
select from other appropriate sources, such as reemployment priority
lists, reinstatement, transfer, handicapped, or Veteran Readjustment
Act eligibles or those within reach on an appropriate OPM certificate.
In deciding which source or sources to use, agencies have an obligation
to determine which is most likely to best meet the agency mission
objectives, contribute fresh ideas and new viewpoints, and meet the
agency's affirmative action goals.
(5) Requirement 5. Administration of the promotion system will
include recordkeeping and the provision of necessary information to
employees and the public, ensuring that individuals' rights to privacy
are protected. Each agency must maintain a temporary record of each
promotion sufficient to allow reconstruction of the promotion action,
including documentation on how candidates were rated and ranked. These
records may be destroyed after 2 years or after the program has been
formally evaluated by OPM (whichever comes first) if the time limit for
grievance has lapsed before the anniversary date.
(c) Covered personnel actions.
(1) Competitive actions. Except as provided in paragraphs (c)(2)
and (3) of this section, competitive procedures in agency promotion
plans apply to all promotions under Sec. 335.102 of this part and to
the following actions:
(i) Time-limited promotions under Sec. 335.102(f)-- of this part
for more than 120 days to higher graded positions (prior service during
the preceding 12 months under noncompetitive time-limited promotions
and noncompetitive details to higher graded positions counts toward the
120-day total). A temporary promotion may be made permanent without
further competition provided the temporary promotion was originally
made under competitive procedures and the fact that might lead to a
permanent promotion was made known to all potential candidates;
(ii) Details for more than 120 days to a higher grade position or
to a position with higher promotion potential (prior service during the
preceding 12 months under noncompetitive details to higher graded
positions and noncompetitive time-limited promotions counts toward the
120-day total);
(iii) Selection for training which is part of an authorized
training agreement, part of a promotion program, or required before an
employee may be considered for a promotion as specified in Sec. 410.302
of this chapter;
(iv) Reassignment or demotion to a position with more promotion
potential than a position previously held on a permanent basis in the
competitive service (except as permitted by reduction-in-force
regulations);
(v) Transfer to a position at a higher grade or with more promotion
potential than a position previously held on a permanent basis in the
competitive service; and
(vi) Reinstatement to a permanent or temporary position at a higher
grade or with more promotion potential than a position previously held
on a permanent basis in the competitive service.
(2) Noncompetitive actions. Competitive procedures do not apply to:
(i) A promotion resulting from the upgrading of a position without
significant change in the duties and responsibilities due to issuance
of a new classification standard or the correction of an initial
classification error; and
(ii) A position change permitted by reduction-in-force procedures
in part 351 of this chapter.
(3) Discretionary actions. Agencies may at their discretion except
the following actions from competitive procedures of this section:
(i) A promotion without current competition of an employee who was
appointed in the competitive from a civil service register, by direct
hire, by noncompetitive appointment or noncompetitive conversion, or
under competitive promotion procedures for an assignment intended to
prepare the employee for the position being filled (the intent must be
made a matter of record and career ladders must be documented in the
promotion plan);
(ii) A promotion resulting from an employee's position being
classified at a higher grade because of additional duties and
responsibilies;
(iii) A temporary promotion, or detail to a higher grade position
or a position with known promotion potential, of 120 days or less;
(iv) Promotion to a grade previously held on a permanent basis in
the competitive service (or in another merit system with which OPM has
an interchange agreement approved under Sec. 6.7 of this chapter) from
which an employee was separated or demoted for other than performance
or conduct reasons;
(v) Promotion, reassignment, demotion, transfer, reinstatement, or
detail to a position having promotion potential no greater than the
potential of a position an employee currently holds or previously held
on a permanent basis in the competitive service (or in another merit
system with which OPM has an interchange agreement approved under
Sec. 6.7 of this chapter) and did not lose because of performance or
conduct reasons; and
(vi) Consideration of a candidate not given proper consideration in
a competitive promotion action.
(d) Grievances. Employees have the right to file a complaint
relating to a promotion action. Such complaints shall be resolved under
appropriate grievance procedures. The standards for adjudicating
complaints are set forth in part 300, subpart A, of this chapter. While
the procedures used by an agency to identify and rank qualified
candidates may be proper subjects for formal complaints or grievances,
nonselection from among a group of properly ranked and certified
candidates is not an appropriate basis for a formal complaint or
grievance. There is no right of appeal of OPM, but OPM may conduct
investigations of substantial violations of OPM requirements.
[FR Doc. 94-32000 Filed 12-28-94; 8:45 am]
BILLING CODE 6325-01-M
