[Federal Register Volume 63, Number 192 (Monday, October 5, 1998)]
[Rules and Regulations]
[Pages 53275-53276]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-26623]
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Rules and Regulations
Federal Register
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This section of the FEDERAL REGISTER contains regulatory documents
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Federal Register / Vol. 63, No. 192 / Monday, October 5, 1998 / Rules
and Regulations
[[Page 53275]]
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OFFICE OF PERSONNEL MANAGEMENT
5 CFR Parts 430 and 534
RIN 3206-AH77
Performance Ratings
AGENCY: Office of Personnel Management.
ACTION: Final rule.
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SUMMARY: The Office of Personnel Management (OPM) is issuing final
regulations to codify longstanding policy regarding retroactive,
assumed, and carry-over ratings of record. These regulations amend the
performance management regulations to explicitly specify that ratings
of record are final upon issuance unless challenged by the employee,
and that retroactive, assumed, and carry-over ratings of record are
prohibited.
DATES: Effective date: November 4, 1998.
FOR FURTHER INFORMATION CONTACT: Barbara Colchao, (202) 606-2720, FAX
(202) 606-2395, email: [email protected].
SUPPLEMENTARY INFORMATION: On April 20, 1998, the Office of Personnel
Management (OPM) issued proposed regulations to codify OPM's
longstanding interpretation of the law regarding the finality of a
rating of record and the prohibition of retroactive, carry-over, or
assumed ratings of record (63 FR 19411). The proposed regulations
addressed four issues: (1) A prohibition against an agency unilaterally
changing a rating that has been issued as a final rating of record to
an employee; (2) a prohibition against an agency going back to provide
a rating of record for a past appraisal period where none was given;
(3) a prohibition against an agency issuing an employee an ``assumed''
rating of record that does not reflect an appraisal of actual
performance; and (4) a prohibition against ``carrying over'' a previous
rating of record to cover more than one appraisal period.
Comments Received
We received comments from four agencies and one union. These
comments, along with changes made to the proposed regulations, are
summarized below.
Comment Summary: One commenter said that inasmuch as these provisions
are longstanding policy it is good to see them finally in regulation.
On the other hand, another commenter questioned why this regulation is
needed and felt the matter should be left to agency discretion and
interpretation.
Response: For a long time, OPM received periodic inquiries
regarding these issues and the number of inquiries has been increasing,
especially as agencies have been developing new performance management
programs to encourage high performance organizations, and to conform to
the requirements of the Government Performance and Results Act. Several
agencies had suggested that these policies be codified in regulation,
in order to provide, and ensure application of, this information in a
more uniform and consistent manner. OPM concurs with this opinion.
Change: No change.
Comment Summary: One commenter asked whether the provision at
Sec. 430.208(i)(2) would apply in those situations where an agency
issues a rating of record to cover a previously unrated period of time
in compliance with the settlement of a grievance procedure. Similarly,
another commenter asked whether this provision would cover settlement
agreements reached through alternative dispute resolution processes.
Response: The intent in this section of the regulation is to
provide for corrective action when ordered by a third party or as part
of a bona fide settlement of a grievance, complaint, or other formal
proceeding permitted by law. Therefore, if, as part of a grievance
procedure, the decision or settlement agreement requires that a rating
of record be provided where none had been given before, and the agency
is able to do so, this would be considered to have been a change
ordered by an appropriate authority as the result of a formal
proceeding for purposes of complying with Sec. 430.208(i)(2). Likewise,
a changed rating of record could result from a bona fide settlement
through an agency's alternative dispute resolution process.
Change: The language at Sec. 430.208(i)(2) has been revised.
Comment Summary: Three commenters stated that by using the issuance
of a new performance plan following a completed appraisal period as the
event that would cause any subsequent ratings of record to be
considered retroactive, the regulation sets up situations where it
would be impossible for their organizations to issue ratings of record.
Response. This certainly was not the intent behind this regulation.
OPM considered setting a 3- to 6-month time frame after the end of the
appraisal period for completing performance appraisals. However, in the
spirit of decentralization, a decision was made not to set a specific,
Governmentwide time frame within which ratings of record must be
issued. Rather, agencies may establish and use such time frames or use
the issuance of a subsequent rating of record as the boundary that
would cause a rating of record, which covers an earlier appraisal
period where no rating of record originally had been given, to be
considered retroactive.
Individual agencies and organizations must determine whether they
need a policy that clearly establishes when it is too late to provide a
rating of record for an appraisal period that has ended. Otherwise, the
issuance of a subsequent rating of record will be considered to clearly
indicate that any former appraisal period(s) not included within the
scope of this single rating of record have been allowed to pass without
the issuance of a rating of record. The regulations prohibit going
back, after the fact, and creating ratings of record for these previous
appraisal periods, unless so ordered by a third party under the
provisions of Sec. 430.208(i)(2).
Change: The language at Sec. 430.208(i) has been revised.
Related Issue
In two separate discussions with agency representatives who were
not commenting on the proposed regulations, an issue arose that is
related to the regulation prohibiting carry over ratings of record. The
discussions were to clarify that current agency policies
[[Page 53276]]
that permit using a previous rating of record for a subsequent
appraisal period only after evaluating the employee's performance and
confirming that it continues to be the same would not violate the
proposed regulation. The regulation prohibits using a previous rating
of record as the actual rating of record for a subsequent appraisal
period without evaluating the employee's performance for that
subsequent appraisal period. Since an actual evaluation of the
employee's performance during the current appraisal period is required
prior to ``revalidating'' or ``recertifying'' the last rating of record
as the applicable rating of record for the current appraisal period, it
does not violate the regulation. The language at Sec. 430.208(h) has
been revised to clarify this.
No comments were received regarding the technical correction, and
these regulations become final as proposed.
Regulatory Flexibility Act
I certify that these regulations will not have a significant
economic impact on a substantial number of small entities because they
apply only to Federal agencies and employees.
List of Subjects
5 CFR Part 430
Decorations, Medals, Awards, Government employees.
5 CFR Part 534
Government employees, Hospitals, Students, Wages.
Office of Personnel Management.
Janice R. Lachance,
Director.
Accordingly, OPM is amending parts 430 and 534 of title 5, Code of
Federal Regulations, as follows:
PART 430--PERFORMANCE MANAGEMENT
1. The authority citation for part 430 continues to read as
follows:
Authority: 5 U.S.C. chapter 43.
2. In Sec. 430.208, paragraphs (a)(1), (a)(2), (a)(3) and (i) are
added; paragraph (h) is redesignated as paragraph (j) and a new
paragraph (h) is added to read as follows:
Sec. 430.208 Rating performance.
(a) * * *
(1) A rating of record shall be based only on the evaluation of
actual job performance for the designated appraisal period.
(2) An agency shall not issue a rating of record that assumes a
level of performance by an employee without an actual evaluation of
that employee's performance.
(3) Except as provided in Sec. 430.208(i), a rating of record is
final when it is issued to an employee with all appropriate reviews and
signatures.
* * * * *
(h) Each rating of record shall cover a specified appraisal period.
Agencies shall not carry over a rating of record prepared for a
previous appraisal period as the rating of record for a subsequent
appraisal period(s) without an actual evaluation of the employee's
performance during the subsequent appraisal period.
(i) When either a regular appraisal period or an extended appraisal
period ends and any agency-established deadline for providing ratings
of record passes or a subsequent rating of record is issued, an agency
shall not produce or change retroactively a rating of record that
covers that earlier appraisal period except that a rating of record may
be changed--
(1) Within 60 days of issuance based upon an informal request by
the employee;
(2) As a result of a grievance, complaint, or other formal
proceeding permitted by law or regulation that results in a final
determination by appropriate authority that the rating of record must
be changed or as part of a bona fide settlement of a formal proceeding;
or
(3) Where the agency determines that a rating of record was
incorrectly recorded or calculated.
PART 534--PAY UNDER OTHER SYSTEMS
3. The authority citation for part 534 continues to read as
follows:
Authority: 5 U.S.C. 1104, 5307, 5351, 5352, 5353, 5376, 5383,
5384, 5385, 5541, and 5550a.
4. In Sec. 534.505, paragraph (b) is revised to read as follows:
Sec. 534.505 Pay related matters.
* * * * *
(b) Performance awards. Performance awards may be paid under 5
U.S.C. chapter 45 and Sec. 451.104(a)(3) of this chapter.
[FR Doc. 98-26623 Filed 10-2-98; 8:45 am]
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