GAO was asked for its comments on proposed regulations concerning within-grade increases. In response, GAO stated that it is concerned with that part of the proposed regulations which permit a within-grade increase in the case where an employee, through an administrative oversight, has not been notified within 60 days after completion of a waiting period that his work is unacceptable. Statutory authority for within-grade increases provides that the granting of a within-grade increase is subject to the condition that the work of the employee be of an acceptable level of competence as determined by the head of the agency, and that an employee be entitled to prompt written notice of a determination that his work is not of an acceptable level of competence and the opportunity for reconsideration and appeal of such a determination. Further, if a reconsideration or appeal results in a reversal of the earlier determination, the new determination is deemed to have been made as of the date of the earlier determination. Thus, it appears that the proposed regulation would be in conflict with the statutory requirement that an employee's performance must be at an acceptable level of competence for entitlement to a within-grade increase. The proposed regulation would raise the prospect of an employee being entitled to a within-grade increase not only where the agency has made a negative determination on the employee's level of performance, but also where such determination has been affirmed by the appropriate review authority. Accordingly, GAO recommends that the proposed regulations be either amended or deleted to insure that the regulation will be consistent with the statutory requirement.
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