Revocation of Final Rule Eliminating Time-in-Grade Requirements Pending Policy Review; Extension of Effective Date During Rulemaking

Summary

The U.S. Office of Personnel Management (OPM) proposes to revoke the final rule, titled Time-in-Grade Rule Eliminated, published in the Federal Register on November 7, 2008, pending OPM's review and consideration of additional public comments received in response to a March 9, 2009 Federal Register notice which extended the final rule's effective date. OPM also proposes to extend the final rule's effective date for an additional 90 days, from May 18, 2009 until August 16, 2009, to avoid the unnecessary expense of allowing a rule to take effect that may later be amended or revoked as a result of the rulemaking proceeding. OPM seeks comments, with a 30-day comment period, on the merits of revoking, retaining, or amending OPM's November 7, 2008 final rule. OPM also seeks comments, with a 5-day comment period, on the merits of extending the final rule's effective date pending the completion of the rulemaking proceeding.

Full text

SUMMARY: The U.S. Office of Personnel Management (OPM) proposes to 
revoke the final rule, titled Time-in-Grade Rule Eliminated, published 
in the Federal Register on November 7, 2008, pending OPM's review and 
consideration of additional public comments received in response to a 
March 9, 2009 Federal Register notice which extended the final rule's 
effective date. OPM also proposes to extend the final rule's effective 
date for an additional 90 days, from May 18, 2009 until August 16, 
2009, to avoid the unnecessary expense of allowing a rule to take 
effect that may later be amended or revoked as a result of the 
rulemaking proceeding. OPM seeks comments, with a 30-day comment 
period, on the merits of revoking, retaining, or amending OPM's 
November 7, 2008 final rule. OPM also seeks comments, with a 5-day 
comment period, on the merits of extending the final rule's effective 
date pending the completion of the rulemaking proceeding.

DATES: The effective date of Time-in-Grade Rule Eliminated, published 
in the Federal Register on November 7, 2008 (73 FR 66157), was delayed 
by a document published March 9, 2009 (74 FR 9951) to May 18, 2009, 
unless the effective date is extended to August 16, 2009 as proposed in 
this document. The comment period for OPM's proposal to extend the 
final rule's effective date will close on May 12, 2009. The comment 
period for OPM's proposal to revoke the final rule will close on June 
10, 2009.

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: employ@opm.gov. Include ``RIN 3206-AL18, Time in Grade'' in 
the subject line of the message.
    Fax: (202) 606-2329.
    Mail: Angela Bailey, 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: Angela Bailey, 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. Janice Warren by telephone (202) 
606-0960; by fax (202) 606-2329; by TTY (202) 418-3134; or by e-mail 
janice.warren@opm.gov.

SUPPLEMENTARY INFORMATION: 

Background

    On February 6, 2008, OPM proposed, at 73 FR 6857, removing and 
reserving 5 CFR part 300, subpart F, thereby eliminating the time-in-
grade restriction on advancement to competitive service positions in 
the General Schedule. Under the rule that OPM proposed to eliminate, 
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.
    On November 7, 2008, after considering comments from seven 
agencies, five unions, one national employee organization, and 33 
individuals, as well as 61 form letters from individuals, OPM issued a 
final rule, at 73 FR 66157, eliminating the time-in-grade restriction. 
The final rule was given an effective date of March 9, 2009 in order to 
give agencies time to amend their policies and communicate changes to 
their human resources staff and employees.
    On March 9, 2009, OPM published a document, at 74 FR 9951, 
extending the final rule's effective date until May 18, 2009 and 
reopening the public comment period. OPM issued this notice pursuant to 
a January 20, 2009 White House memorandum on regulatory review, which 
requested agencies to consider extending for 60 days the effective date 
of regulations that were published in the Federal Register but that had 
not yet taken effect, for the purpose of reviewing questions of law and 
policy raised by those regulations.

Proposal To Revoke the Final Rule

    OPM received public comments in response to the March 9, 2009 
Federal Register notice. Ten individuals commented favorably on the 
final rule. One of these individuals also offered qualified support for 
extending the rule's effective date. One executive agency commented 
neutrally on the final rule. Two executive agencies, one legislative 
agency, and one individual submitted qualified comments on the final 
rule requesting amendments or clarifications or stating concerns about 
implementation. Seven individuals and two labor organizations commented 
in opposition to the final rule. One of these labor organizations also 
commented in favor of extending the rule's effective date. One 
individual commented solely in opposition to extending the final rule's 
effective date. Finally, one individual submitted a statement 
describing his personal experience with time-in-grade requirements, but 
not commenting on the rule or its effective date.
    As OPM stated in its March 9, 2009 Federal Register notice, the 
purpose of the additional public comment period was ``to allow 
interested parties to provide comments about issues of law and policy'' 
raised by regulations that had not yet taken effect. OPM's March 9, 
2009 Federal Register referenced the January 20, 2009 White House 
memorandum on regulatory review, available at http://www.whitehouse.gov/omb/inforeg_regmatters/, which stated that the 
purpose of extending the effective date and reopening the public 
comment period for such rules was to give the incoming Administration's appointees and designees an opportunity to review and approve such 
rules. As noted above, when OPM reopened the public comment period, we 
received numerous substantive comments opposing the final rule, 
requesting amendments or clarifications, or stating concerns about 
implementation. OPM needs time to evaluate these comments, as well as 
the new comments in favor of the rule, as part of the review and 
evaluation process described in the White House memorandum on 
regulatory review.
    Accordingly, OPM proposes to revoke the November 7, 2008 final rule 
pending OPM's review and consideration of the additional public 
comments that were solicited on March 9, 2009. OPM seeks additional 
public comments, with a 30-day comment period, on the merits of 
revoking, retaining, or amending the November 7, 2008 final rule. When 
OPM issues a new final rule, or reissues the November 7, 2008 final 
rule, with or without amendments, OPM will account for the public 
comments received in response to the March 9, 2009 Federal Register 
notice, as well as any comments received in response to this notice of 
proposed rulemaking.

Proposal To Extend the Final Rule's Effective Date

    The November 7, 2008 final rule is scheduled to take effect on May 
18, 2009. However, in its February 6, 2008 notice of proposed 
rulemaking, OPM recognized that agencies need significant time to 
implement any new policy on time-in-grade requirements, and to 
communicate the policy to human resources staff and employees. This 
concern was validated by one agency's comment, in response to OPM's 
March 9, 2009 Federal Register notice, that implementing a time-in-
grade policy required significant lead time, because of that agency's 
need to modify merit promotion procedures, notify labor organizations, 
and amend hundreds of vacancy announcements for competitive service 
positions, all at a time when the agency had significant competing 
obligations.
    Unless the final rule's effective date is further extended, 
agencies likely will undertake significant effort and expense to meet 
the changes required by the rule. If the decision is made to revoke or 
amend the final rule, these expenses will have been incurred 
unnecessarily. Furthermore, OPM will have to begin answering questions 
and providing compliance assistance about how the final rule is to be 
implemented, guidance that will only confuse agencies if new guidance 
about a revised rule has to be provided in the near future. For these 
reasons, OPM proposes to extend the November 7, 2008 final rule's 
effective date by an additional 90 days, until August 16, 2009. This 
will give OPM time to review public comments and complete the 
rulemaking proceeding. OPM is opening a 5-day public comment period on 
the proposed extension of the final rule's effective date, separate 
from the 30-day public comment period on the notice of proposed 
rulemaking.
    OPM suggests that agencies delay preparations and financial 
commitments associated with the changes required by the final rule 
until a decision is made regarding whether and when, if at all, the 
regulation will go into effect.

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.
John Berry,
Director.
[FR Doc. E9-11014 Filed 5-7-09; 12:00 pm
BILLING CODE 6325-39-P  

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