Nothing here substitutes for your servicing HR and employee relations office. Choosing between chapter 43 and chapter 75, and drafting anything that could become an appealable action, is work you do with them. What this page gives you is enough understanding to ask the right questions early, which is where most performance cases are actually won or lost.
I The middle rating is gone
The appraisal final rule amended 5 CFR 430.208(e) to eliminate summary level patterns with a Level 2 between Level 1 (Unacceptable) and Level 3 (Fully Successful), and patterns in which Level 4 was the highest summary level.
| Patterns | Status |
|---|---|
| C, D, F, G, H | Removed |
| A and B | Retained |
| E | Redesignated as C |
OPM's stated reasoning was that eliminating unnecessary patterns positions agencies to make clear and accurate distinctions between Fully Successful and Unacceptable performance. The rule also resolved ambiguity at the top: Outstanding is identified only by a Level 5 rating.
Because Level 2 no longer exists as a summary level, OPM removed 5 CFR 430.207(c) — the provision requiring appraisal programmes to provide assistance whenever performance was determined to be below Fully Successful or equivalent but above Unacceptable.
Several commenters argued this creates an all-or-nothing structure and reduces the ability to distinguish among varying levels of performance. Whatever your view, the operational consequence for you is concrete: marginal performance now forces a decision earlier, because there is no intermediate rating to record it in and no corresponding assistance obligation to discharge.
So the question you face mid-cycle is sharper than it used to be. Not "is this person struggling?" but "is this performance Fully Successful, or is it Unacceptable?" — because those are now substantially the options, and the second one opens a formal process.
II Two chapters, two trade-offs
Where performance is unacceptable, there are two routes and they trade off against each other. This is an HR decision, but you should understand what is being traded.
| Chapter 43 | Chapter 75 | |
|---|---|---|
| Based on | Critical elements in the plan | Efficiency of the service |
| Opportunity period | Required | Not required |
| Burden | Substantial evidence | Preponderance |
| Board may mitigate | No | Yes |
Substantial evidence is the lower bar, and for a reduction in grade or removal taken under chapter 43 the penalty cannot be reduced by the Board. That combination is why chapter 43 is often preferred for genuine performance cases — but it is only available where the deficiency maps to critical elements set out in the employee's performance plan, and where you have given a real opportunity to improve.
Which brings the whole thing back to the plan. A vague critical element is not a drafting inconvenience; it is the thing that makes a chapter 43 action unavailable a year later. The employee-side view is in adverse actions, and it is worth reading — what defends against an action tells you what a sound one looks like.
III What the opportunity period requires
The statute requires a reasonable opportunity to demonstrate acceptable performance. It does not name a number of days, and this is worth getting right because the number everyone quotes is not in the regulation.
| Source | What it says |
|---|---|
| The regulation | A reasonable opportunity |
| OPM memo guidance | Limited to 30 calendar days |
| OPM supervisor guide | Typically 30 business days |
| Proposed rule, 2 July 2026 | Would cap at 30 days — not final |
OPM's own materials disagree on whether the 30 days are calendar or business days, and the rule that would actually fix the number — published 2 July 2026, which would also make removal the default outcome where performance remains unacceptable — is proposed, not final. Until it is, the operative standard is reasonableness, and your agency policy or a collective bargaining agreement may require more. Ask employee relations what your agency actually applies before you set a date.
The same proposed rule would prohibit informal performance assistance periods ahead of the formal opportunity period, which some collective bargaining agreements currently require. If your agreement contains one, that is a live question for your labour relations office rather than something to resolve yourself.
What makes an opportunity period defensible is not its length but its content: what specifically is deficient, what acceptable looks like, what assistance is being provided, and what happens if it does not improve. Vagueness on any of those is where these cases fail.
IV Performance Action Planner
Where a case sits, what route is open, and what has to be true before you start.
What Are My Options Here?
Orientation only. Every action goes through your servicing HR and employee relations office.
V The penalty standard changed
For appeals filed on or after 5 October 2026, the Merit Systems Protection Board applies a tolerable limits of reasonableness standard, considering the totality of the circumstances case by case, rather than the twelve Douglas factors. Appeals already pending on that date continue under the previous framework.
The agency still bears the burden of proving the penalty reasonable. This is a change in how a penalty is evaluated, not a removal of the requirement to justify one. If anything it raises the value of a clear contemporaneous record of why you proposed what you proposed, because a structured list of factors no longer supplies that reasoning for you. The employee-side treatment is in responding to a proposed action.
VI You are being rated on this
Two things now point back at you.
First, the appraisal rule requires a supervisory critical element for all supervisors covered by the subpart. Whether plans go out on time, whether feedback is given, whether problems are addressed rather than deferred — that is a rated element of your own performance now.
Second, the rating you assign to someone else carries. Under the reduction in force rule effective 2 September 2026, performance credit is computed from an employee's three most recent ratings of record — 7 points for a Level 5, 5 for a Level 4, 3 for a Level 3, zero below, capped at 21 — and applied before tenure and before veterans' preference.
What a generous rating costs someone else
Two employees, similar work, one rated accurately at Level 3 and one rated generously at Level 4 to avoid a difficult conversation.
The honest implication is not that you should rate harshly. It is that accuracy now has stakes in both directions, and that the conversation before the rating is final is the only conversation there is. See maximizing your performance rating for how it looks from the other side of the desk.
VII The playbook
| Situation | What to do |
|---|---|
| Start of the cycle | Write critical elements specific enough to measure against. That is the whole case. |
| Someone is marginal | There is no Level 2 to record it in. Decide, and say so in writing. |
| Considering a formal action | Call employee relations first, not after you have drafted anything. |
| Only verbal conversations so far | You do not have a case yet. Start dating your records today. |
| Elements are vague | Chapter 43 may not be available. Fix the plan next cycle. |
| Setting an opportunity period | Ask what your agency applies. The 30-day figure is guidance, not regulation. |
| Your CBA requires an assistance period | Labour relations question. A proposed rule would prohibit it; it is not final. |
| Proposing a penalty | Record why. The Douglas framework no longer supplies the reasoning. |
| Tempted to rate generously | It carries three years into retention standing. So does rating harshly. |
| Before finalising any rating | Have the conversation. There is no grievance route afterwards. |
Running performance properly
- Draft critical elements you could actually measure someone against.
- Issue plans on time — it is now part of your own rated performance.
- Give mid-year feedback in writing and keep it.
- Record specific incidents with dates, tied to named critical elements.
- Decide early where marginal performance sits. There is no middle rating now.
- Contact employee relations before drafting anything formal.
- Confirm what opportunity period your agency applies, and whether a CBA adds to it.
- State in the plan what is deficient, what acceptable looks like, and what assistance is offered.
- Document your reasoning for any proposed penalty.
- Hold the rating conversation before the rating is final.
Frequently asked questions
It was eliminated. The performance appraisal final rule amended 5 CFR 430.208(e) to remove summary level patterns containing a Level 2 between Level 1, Unacceptable, and Level 3, Fully Successful, and to remove patterns in which Level 4 was the highest summary level. OPM removed Patterns C, D, F, G and H, retained Patterns A and B, and redesignated Pattern E as C. Because Level 2 no longer exists as a summary level, OPM also removed 5 CFR 430.207(c), which had required appraisal programs to provide assistance whenever performance was below Fully Successful or equivalent but above Unacceptable.
Because the intermediate landing place is gone. You previously had somewhere to put an employee who was struggling but not failing, with a corresponding duty to assist. Now the summary judgement is closer to binary: either performance meets Fully Successful or it is Unacceptable, and Unacceptable opens a formal process with real consequences. Several commenters on the rule raised exactly this concern, describing it as creating an all-or-nothing structure. Whatever view you take of that, it means marginal performance now forces a decision earlier than it used to.
The regulation requires a reasonable opportunity to demonstrate acceptable performance rather than a fixed number of days. OPM guidance points to 30 days, though its own materials are not consistent about whether that means calendar or business days. A proposed rule published on 2 July 2026 would cap improvement periods at 30 days and make removal the default outcome where performance remains unacceptable, but that rule is proposed rather than final. Until it is finalised the operative standard remains reasonableness, and your agency's own policy and any collective bargaining agreement may set more.
That is a decision for your servicing HR and employee relations office, not one to make alone, but the trade-off is worth understanding. A chapter 43 action for unacceptable performance requires a prior opportunity to demonstrate acceptable performance and is judged on substantial evidence, a deferential standard, and the Board may not reduce a reduction in grade or removal taken under it. A chapter 75 action carries the higher preponderance of the evidence standard and does not require an improvement period, but the penalty can be mitigated on appeal.
For appeals filed on or after 5 October 2026, the Merit Systems Protection Board applies a tolerable limits of reasonableness standard considering the totality of the circumstances, rather than the twelve Douglas factors. Appeals already pending on that date continue under the previous framework. The agency still bears the burden of proving the penalty reasonable, so this is a change in how the penalty is evaluated rather than a removal of the requirement to justify it. Document your reasoning either way.
Considerably more than it used to. Under the reduction in force rule effective 2 September 2026, performance credit is computed from an employee's three most recent ratings of record at 7 points for Level 5, 5 for Level 4, 3 for Level 3 and zero below, to a maximum of 21, and that score is applied before tenure and before veterans' preference. A rating you assign therefore carries into retention standing for years. That is a reason for accuracy in both directions, not for generosity.
The ordinary route was removed. The appraisal rule effective 6 August 2026 removed the option to grieve a rating of record. That does not extinguish every avenue — a discrimination or retaliation claim runs separately through EEO or the Office of Special Counsel, and a within-grade increase denial has its own reconsideration process — but it does mean the conversation you have before the rating is final is now the conversation. Make it a real one.
The same rule requires a supervisory critical element for all supervisors covered by the subpart, so how you manage people is a rated element of your own performance. In practice that means the quality of your performance management — whether plans are issued on time, whether feedback is given, whether problems are addressed rather than deferred — now appears in your own rating of record, which in turn feeds your own retention standing. The incentives changed at both ends of the relationship.