Promotion and Internal Placement; Accelerated Qualifications

SUMMARY: The Office of Personnel Management (OPM) proposes to revise

the Federal merit promotion program to give agencies greater

flexibility to design internal merit selection procedures consistent

with merit principles and other applicable laws, to assign employees to

other positions appropriate to the appointments, and to utilize

intensive training programs for employees to acquire qualifications at

an accelerated rate. These changes are consistent with recommendations

of the National Performance Review.

DATES: Comments must be submitted on or before April 22, 1996.

ADDRESSES: Send or deliver written comments to Leonard R. Klein,

Associate Director of Employment, Office of Personnel Management, Room

6F08, 1900 E Street NW., Washington, DC 20415 (FAX 202-606-2329).

FOR FURTHER INFORMATION CONTACT:

Lee Edwards on 202-606-0830, TDD 202-606-0023, or FAX 202-606-2329.

SUPPLEMENTARY INFORMATION: The National Performance Review (NPR)

recommended changes in the way the Government operates. Consistent with

the NPR recommendations, these proposals would streamline regulations

to give agencies more authority to design internal merit selection

procedures (merit promotion plans), assign employees to other

positions, and utilize intensive training programs for employees to

acquire qualifications at an accelerated rate. These proposals would

revise the current merit promotion program requirements in 5 CFR part

335 published in the Federal Register on December 29, 1994 (59 FR

67121) and effective on January 1, 1995.

Merit Promotion Program

A continuing thread throughout the history of the merit promotion

program has been the balancing of merit considerations and uniformity

with agency need for flexibility to tailor programs to meet their

organizational needs. Up to the 1950's, agencies could promote any

employee who met minimum qualification standards. In 1950, agencies

received a set of basic principles to observe in their promotion

programs but still retained much latitude.

In 1959, the first real Federal Merit Promotion Program was

established in response to employee, Presidential, and Congressional

concerns over the limited use of systematic means of selection. For the

first time, agencies were required to have specific promotion plans for

the systematic and competitive consideration of employees for

promotion. But the program continued to give agencies the flexibility

to design programs to meet their needs.

In 1969, the program underwent a major revision to assure equitable

consideration of qualified employees and selection of the most able,

and to strengthen employee confidence in the fairness of the program.

At that point, very detailed requirements were introduced concerning

such matters as areas of consideration, methods of locating candidates,

use of supervisory performance appraisals, evaluation methods to

determine the best-qualified candidates, limits on use of written

tests, limits on the number of best-qualified candidates that could be

referred for selection, and training requirements for new supervisors.

In 1973, OPM began the process of easing back on such detailed

requirements by providing more room for collective bargaining. Then in

1979, agencies were given broad authority to develop, negotiate, and

manage their own promotion programs. Adoption of the revised program

coincided with implementation of the Civil Service Reform Act of 1978,

which expanded delegation of personnel authority to agencies and

broadened the scope of collective bargaining. In this current proposal,

OPM would continue to move in the same direction by further relaxing

OPM detailed requirements but emphasizing the statutory platform

underpinning agency merit staffing programs.

Several of the earlier program revisions were undertaken to

emphasize the need for open competition and selection from among the

best-qualified applicants. Those same principles are at the heart of

this proposal, with the intent to foster and environment in which

agencies feel free to develop different approaches to satisfy these

merit considerations. Whether justified or not, some agencies feel

OPM's guidance has boxed them into a set way of filling positions. The

process has created delays in filling jobs and often is very labor and

paper intensive, resulting in a lack of confidence in the system by

both managers and employees.

While speed and efficiency in filling positions are critical to

effective operations, the process must also be in accord with merit

principles. One suggestion has been to allow managers to promote their

``logical'' candidates or anyone having an exceptional performance

rating and dispense with open competition and comparison with other

candidates. Not only does that proposal conflict with merit principles,

but it is the very type of action that led to widespread complaints and

subsequent adoption of the first set of program requirements in 1959.

This proposal is not intended to return agencies to the loose

policies of that earlier era nor to sacrifice principles of merit and

open competition. Instead, by eliminating most OPM operational

requirements, we hope to encourage agencies to be more creative in

developing legal practices appropriate to their unique needs, resulting

in more timely promotions and greater confidence of managers and

employees that deserving employees are promoted. Agencies, for example,

could design their programs around unique needs, try different

evaluation techniques, use automated systems, use a variety of ways to

satisfy open competition, and involve managers in the process more.

Furthermore, while some problems with the system are due to OPM

requirements, others flow from agency rules. OPM hopes that this

proposal would also generate agency initiatives to review and eliminate

procedural burdens unrelated to merit and open competition.

[[Page 6325]]

Following is a discussion of each proposed regulation section.

Section 335.102

Agencies must continue to adopt promotion plans that provide for

systematic and competitive selection from among the best-qualified

candidates, based on job-related criteria, after fair and open

competition. Agencies would consult or negotiate, as appropriate, with

employees and unions in developing policies and practices that are

accepted as fair and result in selections of the best-qualified

candidates.

The foundation of agency promotion plans would be existing laws.

Some of the major laws are:.

--Merit system principles, which include equal employment opportunity

(5 U.S.C. 2301).

--Prohibited personnel practices (5 U.S.C. 2302).

--Reporting of certain job announcements to OPM (5 U.S.C. 3329) as

implemented by 5 CFR 335.105.

--Consideration of employees absent because of military duty (38 U.S.C.

chapter 43), compensable injury that does not exceed 1 year (5 U.S.C.

8151), or service with international organizations (5 U.S.C. 3582).

--Due weight for incentive awards (5 U.S.C. 3362).

--Results of performance appraisals (5 U.S.C. 4302).

--Minimum qualification requirements (5 U.S.C. 5105 and 16 U.S.C. 470h-

4).

--Management's right to select or not select from among properly ranked

and certified candidates and to select from other appropriate sources

of candidates (5 U.S.C. 7106 and 5 CFR 7.1).

--Employment practices (including job analysis) and antidiscrimination

policy (5 U.S.C. 7201-7204) as implemented by 5 CFR Part 300, Subpart

A, and Part 720.

These laws are incorporated into a framework of seven requirements

contained in revised Sec. 335.102

Requirement 1 would require agencies to adopt merit staffing plans

for selecting employees for advancement based solely on relative

ability, knowledge, and skills after fair and open competition which

assures that all receive equal opportunity. Agencies would be required

to assure that promotion practices conform to the merit system

principles. Agency accountability mechanisms, as recommended by the

NPR, would appropriately contain a human resource management

accountability component, including actions under merit staffing plans.

To assist agencies in this effort, OPM is offering agencies training in

the merit system principles and assistance in refocusing their

accountability efforts on the principles.

Requirement 2 deals with competition requirements. At present, part

335 lists promotions and six other actions that must be competitive and

six actions that agencies may except from competition. Over the last

several years, OPM made several changes in these exceptions. For

example, employees who accept voluntary downgrades are no longer

required by OPM rules to compete to regain their former grade levels.

Many employees are being encouraged to change jobs voluntarily to avoid

reduction in force situations, and this change eliminated a barrier

that discouraged career transitions.

The need for revisions and the rapidly changing circumstances

brought about by widespread reorganizations and downsizing have

convinced us that OPM no longer should specify very detailed coverage

and exceptions. Agencies need the flexibility to respond to changing

needs without seeking waivers or regulatory changes. At the same time,

employees need assurance that merit is the focus of promotion programs.

This proposal would continue to require competition for positions

at higher grades or with greater advancement potential than an employee

previously held. Agencies could continue to select employees

competitively for a training opportunity that results in placement in a

target position.

This proposal would continue to provide for the noncompetitive

promotion of employees whose position are upgraded to correct a

classification error or implement a new classification standard. The

exclusion of reduction in force actions also would remain unchanged.

As under the current program, agencies could except actions from

competition where an employee previously held an equivalent position.

Actions for brief periods could be excepted from competition, but the

agency rather than OPM would determine the cut-off point for

competition. Agencies could continue noncompetitive promotions for job

reclassifications due to accretion of higher grade duties, but the

higher grade position would have to absorb the duties of the old

position.

Where agencies fill positions below the performance grade level,

they could continue to provide for noncompetitive career ladder

promotions. In addition, the proposal expands on the career ladder

concept by adding the flexibility to permit noncompetitive movement to

any position within an occupational group with a career ladder that

does not exceed the journey level for that occupation.

While traditional career ladders have several advantages for both

employee and manager, they focus entirely on individual positions and

not on career fields or broad occupational needs of the agency.

Employees selected under the same competitive process for employment in

the same occupational grouping often are assigned to positions having

different career ladders, or full performance levels. As a result, some

employees in similar positions have to compete further for the same

level of advancement that others receive noncompetitively.

Under this proposal, agencies could move employees noncompetitively

within an occupational group to similar positions with a higher full

performance level that does not exceed the journey level for most

positions in that occupational group. Competition would be required for

assignment to positions above the journey level.

The agency would determine journey levels on the basis of job

classification standards. Journey level is the nonsupervisory full

performance grade level at which most positions in that occupational

grouping under the first level of supervision could be classified. The

agency also would determine occupational groupings of similar or

closely related positions based on position classified and

qualification standards. An occupational grouping might include all

positions in an occupational family, such as all positions in the GS-

200 family. Or, the agency might set more limited groupings, such as

all positions in the GS-235 series, or even more narrow.

Use of this option could expand placement opportunities for surplus

employees as well as meet broader occupational needs of the agency.

Finally, this proposal would delegate to agencies the authority to

adopt other exceptions in their merit staffing plans when they

determine the actions would be consistent with the spirit and intent of

merit principles. The exceptions must be made a part of an agency's

merit staffing plan.

Requirement 3 continues existing requirements concerning

recruitment and job announcements.

Requirement 4 addresses evaluation procedures. An issue that

continues to arise is whether different procedures

[[Page 6326]]

may be used on the number of applicants. This proposal requires that

selection be from among the best-qualified candidates, without any

reference to numbers. Identification of the best qualified requires a

qualitative review, either by the selecting official or others. This

proposal does not specify how the agency determines which applicants

are the best qualified, except to require that the evaluation be based

on job-related requirements and be applied fairly and consistently.

Within these parameters, each agency would determined the specific job-

related evaluation procedure to use.

Examples of abbreviated processes that some agencies use to

identify the best-qualified candidates from among small numbers of

applicants: a selecting official distinguishes the best-qualified

candidates based on a key knowledge, skill, or ability, and selects

from that group; a subject matter expert certifies that the referred

candidates are the best qualified based on job-related criteria.

Requirement 5 covers existing management selection options.

Requirement 6 covers complaints and corrective actions. The

existing part 335 allows employee complaints under appropriate

grievance procedures except that an employee may not grieve

nonselection from among a group of properly ranked and certified

candidates. We have continued that policy in this proposal.

An agency would be required to take corrective action where a

violation of law, regulation, or agency plan has occurred. OPM plans to

develop nonregulatory guidance to assist agencies in taking corrective

action.

Requirement 7 continues existing recordkeeping requirements.

Section 335.103

Revised Sec. 335.103 contains a provision that would enable an

agency to request OPM approval to adopt policies different from those

in 5 CFR part 335 if not in conflict with law. Individual agency

programs or occupations may be unique or highly specialized, justifying

a different approach. For example, an agency might wish to experiment

with alternative dispute resolution techniques, instead of grievance

procedures, to settle complaints about promotion actions. Also,

agencies might seek exceptions for pilot programs under the Government

Performance and Results Act (Pub. L. 103-62, August 3, 1993) to improve

the management and efficiency of agency programs. In no circumstance,

however, could the merit system principles, prohibited personnel

practices, or other requirements of law be waived.

Section 335.104

The current Sec. 335.104 sets minimum performance requirements for

noncompetitive career ladder promotions. These promotions should rest

on high performance levels, but OPM believes eligibility requirements

are an appropriate agency responsibility (beyond existing OPM

requirements such as qualification standards). Furthermore, the level

of performance to be met is only one of several factors, such as the

range of skills to be acquired, the existence of higher level work, and

sufficient funds, that an agency might wish to address. We propose to

delete Sec. 335.104 and instead provide in Sec. 335.102 that agencies

will establish requirements for noncompetitive promotions.

Agency Authority To Promote, Demote, or Reassign

Inherent in the agency power to appoint employees is the power to

assign employees to other duties, consistent with any applicable law (5

U.S.C. 301). However, the current 5 CFR 335.102 limits the extent to

which agencies may promote, demote, or reassign certain employees in

the competitive service.

OPM proposes to eliminate these restrictions and authorize agencies

in revised Sec. 335.101 to move employees to other positions consistent

with the appointments under which the employees serve. The proposed

change would enable agencies to utilize employees in other positions

where needed and for employees to seek other opportunities. This action

would primarily benefit employees under temporary appointment pending

establishment of a register (TAPER). Other provisions would continue to

apply, such as competition provisions of Sec. 335.102, the reduction in

force retention rights in 5 U.S.C. chapter 35, and the procedural

protections and appeal rights relating to performance based and adverse

actions under 5 U.S.C. chapters 43 and 75.

Vacancy Announcements

This is a reminder that Sec. 335.105 implements 5 U.S.C. 3330,

which requires that information be given to the public about certain

job vacancy announcements. In addition, OPM has issued career

transition assistance requirements in part 330, under which agencies

must notify OPM of competitive service vacancies to be filled for more

than 90 days when applications will be accepted from outside an

agency's own work force.

Accelerated Qualifications

The former Federal Personnel Manual authorized agencies to

establish training agreements under which employees could acquire

qualifications for a higher grade position at an accelerated rate.

These intensive training programs are traditionally used for critical

shortage occupations at entry levels where employees are given

accelerated training to obtain the necessary skills more quickly. The

programs provide a valuable recruitment incentive in filling positions

where qualified applicants are in extremely short supply.

To establish continuing agency authority for employees to acquire

qualifications at an accelerated rate under intensive training

programs, OPM proposes to add such authority to part 338. Related to

this, 5 CFR 300.603(b)(6) prohibits more than two promotions in any 52-

week period on the basis of a training agreement and requires OPM

approval of a training agreement that provides for consecutive

promotions in less than 1 year. (OPM proposed to abolish the year-in-

grade waiting period [59 FR 30717, June 15, 1994, and 60 FR 2546,

January 10, 1995] but has not acted on the proposal.)

Other Related Actions

Under the current 5 CFR Sec. 335.101(b), generally a position

change does not change an employee's tenure except as shown in

Sec. 316.703, which deals with status quo employees. These are

primarily individuals who fail to qualify for career-conditional

employment when their excepted or nonfederal positions are brought into

the competitive service. They are retained as nonpermanent employees in

tenure group III and are called status quo employees.

Section 316.703 requires agencies to change status quo employees to

a different type of nonpermanent appointment in tenure group III when

changing the employee to a different position. If the agency moves the

employee back to the original position, it must change the employee

back to status quo.

We propose to eliminate Sec. 316.703 as unnecessary. This would

mean that a status quo employee would remain under a status quo

appointment regardless of any position change. The employee would not

gain or lose any benefits by the elimination of Sec. 316.703.

Another exception to the general rule that tenure is not affected

by a position change is contained in Sec. 335.101(c). This provides

that a career-conditional employee becomes a career employee when

promoted, demoted, or reassigned

[[Page 6327]]

to a position paid under chapter 45 of title 39, United States Code,

which covers the Postal Service. This reference to title 39 positions

is obsolete because the Postal Service was removed from the competitive

service in 1971 by legislation. Since then, the Postal Service has

operated under its own independent excepted service personnel system.

Because these OPM regulations on competitive service appointments no

longer apply to the Postal Service, we are eliminating the obsolete

references in revised Sec. 335.101(c) to positions paid under title 39.

Regulatory Flexibility Act

I certify that these regulations will not have a significant

economic impact on a substantial number of small entities because they

pertain only to Federal employees and agencies.

List of Subjects in 5 CFR Parts 316, 335, and 338

Government employees.

Office of Personnel Management.

James B. King,

Director.

Accordingly, OPM proposes to amend parts 316, 335, and 338 of title

5, Code of Federal Regulations, as follows:

PART 316--TEMPORARY AND TERM EMPLOYMENT

1. The authority citation for part 316 is revised to read as

follows:

Authority: 5 U.S.C. 3301, 3302; E.O. 10577, 3 CFR 1954-1958

Comp., p. 218. Sections 316.302 and 316.402 also issued under 5

U.S.C. 3112 and 3304(c), 22 U.S.C. 2506, 38 U.S.C. 2014, and E.O.

12721.

Sec. 316.703 [Removed]

2. Section 316.703 is removed.

PART 335--PROMOTION AND INTERNAL PLACEMENT

3. The authority citation for part 335 is revised to read as

follows:

Authority: 5 U.S.C. 3301, 3302, 3330; E.O. 10577, 3 CFR 1954-58

Comp., p. 218.

Sec. 335.104 [Removed and reserved]

4. Sections 335.101, 335.102, and 335.103 are revised and

Sec. 335.104 is removed and reserved, to read as follows:

Sec. 335.101 Position changes.

(a) Consistent with Sec. 335.102 and, when applicable, part 319 of

this chapter, an agency head is authorized to promote, demote, or

reassign an employee to any competitive service position appropriate to

the type of appointment under which the employee serves and consistent

with all applicable statutory and regulatory requirements.

(b) The authority in this section includes time-limited promotion

for a definite period. The return of an employee at any time to the

position from which temporarily promoted, or a position of equivalent

grade and pay, is not subject to the procedures in parts 351, 432, or

752 of this chapter if the agency had given the employee advance

written notice of the conditions of the time-limited promotion.

(c) This section covers all types of appointments in the

competitive service except temporary appointments not to exceed 1 year

authorized by subpart D of part 316 of this chapter.

(d) A position change does not change an employee's competitive

status or tenure except that:

(1) A career-conditional employee who is promoted, demoted, or

reassigned to a position required by law to be filled on a permanent

basis becomes a career employee; and

(2) A career employee who is promoted, demoted, or reassigned from

a position required by law to be filled on a permanent basis becomes a

career-conditional employees unless he or she has completed the service

requirement for career tenure in Sec. 315.201 of this chapter.

Sec. 335.102 Internal merit selection programs.

An agency head may promote, demote, and reassign competitive

service employees in accordance with Sec. 335.101, detail them in

accordance with Sec. 300.301 of this chapter, and reinstate and

transfer individuals in accordance with part 315 of this chapter, only

to positions for which the agency is administering a merit-based

selection program that ensures a systematic means of competitive

selection from among the best-qualified candidates available. These

programs shall conform with all applicable law, including the following

requirements.

(a) Requirement 1. Each agency must establish a merit staffing

plan(s) for selecting employees for advancement base solely on relative

ability, knowledge, and skills after fair and open competition which

assures that all receive equal opportunity. The plans must be available

in writing and list exceptions to competition. All actions are subject

to the merit system principles of 5 U.S.C. 2301 and the prohibited

personnel practices of 5 U.S.C. 2302. (5 U.S.C. 2301, 2302, 3301, 3341,

and 3361)

(b) Requirement 2. (1) Competition is required in assignment or

detail, for other than a limited specified period, to a position at a

higher grade or with a higher full performance grade level than an

employee previously held on a permanent basis. Selection requirements

for training are defined in part 410 of this chapter.

(2) Competition does not apply to reduction in force actions under

part 351 of this chapter, and to the upgrading of a position without

significant change in an employee's duties and responsibilities due to

issuance of a new classification standard or correction of an initial

classification error.

(3) An agency may except (and must document in its merit staffing

plan) other types of actions from competition that it determines are

consistent with the spirit and intent of merit principles, including:

(i) Movement within the same occupational grouping from one

position to another position that has a higher full performance grade

level but does not exceed the established journey level of that

occupational grouping. Journey level is the nonsupervisory full

performance grade level at which most positions in that occupational

grouping under the first level of supervision could be classified, as

determined by the agency (or component) based on position

classification standards. Occupational grouping is a group of similar

or closely related positions, as determined by the agency (or

component) based on position classification and qualification

standards; and

(ii) The upgrading of an employee's position due to accretion of

additional higher grade duties and responsibilities where the successor

position absorbs the old position.

(4) A noncompetitive action under this part may be based on a

previously held excepted service position only when held under another

merit system with which OPM has an interchange agreement approved under

Sec. 6.7 of this chapter. A Senior Executive Service career appointee

who is eligible for reinstatement under Sec. 315.401 of this chapter

may be noncompetitively reinstated or assigned to any position or grade

in the competitive service for which qualified. Agencies are authorized

to establish eligibility criteria for noncompetitive promotions.

(c) Requirement 3. Recruitment methods should be designed to

attract qualified individuals from appropriate sources in an endeavor

to achieve a diverse work force that represents all segments of

society, including persons with disabilities. The area of recruitment

should be sufficiently broad to attract quality candidates. Procedures

must provide for consideration of

[[Page 6328]]

employees absent because of military duty, compensable injury that does

not exceed 1 year, and service with international organizations,

individuals on a re-employment priority list, and for any other reasons

required by law or regulation or determined by the agency. Agencies

must give advance notice to OPM of all competitive service positions to

be filled for more than 90 days when applications will be accepted from

an outside agency's own work force (5 U.S.C. 2301, 2302, 3330,

3402(a)(1)(A), 3582, 7201-7204, and 8151; 38 U.S.C. chapter 43; 5 CFR

Sec. 330.102, Sec. 330.706, Sec. 335.105, and part 720).

(d) Requirement 4. To be eligible for placement, a candidate must

meet an appropriate provision of the applicable OPM qualification

manual and any other legal requirements that apply. Evaluation criteria

must be based on the requirements of the job to be filled and applied

in a fair and consistent manner. In qualification and selection

decisions, due weight, as determined by the agency, shall be given to

performance appraisals and to any incentive awards or other performance

recognition received by applicants. Competitive selection must be from

among the best-qualified available candidates. The agency may determine

how to identify the best-qualified candidates, but that identification

may not be waived (5 U.S.C. 2301, 3301, 3362, 4302, and 5105; 16 U.S.C.

470h-4; 5 CFR part 300, subpart A).

(e) Requirement 5. Agency procedures must provide for management's

right to select or not select from among properly ranked and certified

candidates and to select from other appropriate sources of candidates

(5 U.S.C. 7106; 5 CFR part 7.1).

(f) Requirement 6. An individual may seek redress, under applicable

procedures, of a complaint relating to a promotion decision or action

other than nonselection from a group of properly ranked and certified

candidates. There is no right of appeal to OPM of individual promotion

actions. An agency must take appropriate action to correct violations

of the agency's merit selection procedures identified through

grievances or any other means and shall follow OPM instructions

concerning violations of statute of OPM regulation (5 U.S.C. 1103,

1104, and 7121; 5 CFR part 5).

(g) Requirement 7. Each agency shall maintain a record of each

competitive action sufficient to allow reconstruction. These records

may be destroyed after 2 years or after OPM has evaluated the program,

whichever comes first, if the time limit for complaints has expired.

The basis for each noncompetitive promotion must be documented on the

personnel action (5 U.S.C. 1103 and 1104; 5 CFR part 5).

Sec. 335.103 Exceptions.

At the request of an agency head, OPM may approve an exception to

any provision in this part when the exception is consistent with

applicable statutory provisions and would enable the agency to address

more effectively a specific agency need in the administration of merit

staffing programs.

PART 338--QUALIFICATION REQUIREMENTS (GENERAL)

5. The authority citation for part 338 continues to read as

follows:

Authority: 5 U.S.C. 3301, 3302; E.O. 10577, 3 CFR 1954-1958

Comp., p. 218.

6. Subpart C consisting of Sec. 338.301 is added to read as

follows:

Subpart C--Accelerated Qualifications

Sec. 338.301 Accelerated qualifications through intensive training

programs.

Agencies are authorized to establish training programs that provide

intensive and directly job-related training to employees selected in

accordance with parts 335 and 410 of this chapter. Such training may be

substituted for all or part of the experience required by an OPM

qualification standard. Agencies are not authorized to substitute such

intensive training for minimum educational requirements established by

OPM, or for licensing, certification, or other specific credentials

required by OPM qualification standards.

[FR Doc. 96-3122 Filed 2-16-96; 8:45 a.m.]

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