[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.

-----------------------------------------------------------------------

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