[Federal Register Volume 64, Number 66 (Wednesday, April 7, 1999)]
[Rules and Regulations]
[Pages 16797-16801]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-8587]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 64, No. 66 / Wednesday, April 7, 1999 / Rules
and Regulations
[[Page 16797]]
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OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 351
RIN 3206-AI09
Reduction in Force Service Credit; Retention Records
AGENCY: Office of Personnel Management.
ACTION: Final rulemaking.
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SUMMARY: The Office of Personnel Management (OPM) is issuing final
regulations that cover service credit for reduction in force purposes.
These final regulations also cover access to reduction in force records
by employees and their representatives.
DATES: These regulations are effective May 7, 1999.
FOR FURTHER INFORMATION CONTACT: Thomas A. Glennon or Jacqui R. Yeatman
at (202) 606-0960, FAX (202) 606-2329.
SUPPLEMENTARY INFORMATION:
Background
On August 14, 1998, OPM published proposed regulations (63 FR
43640) that covered the crediting of civilian and uniformed service for
purposes of reduction in force competition under part 351 of this
title. These proposed regulations also covered who has access to
reduction in force retention records, when that access is available,
and what records are available for review.
Comments (Overview)
OPM received six comments on the proposed regulations: one from a
Federal agency, two from veterans' organizations, one from an employee
association, one from an employees' union, and one from an individual
employee.
Comments on Reduction in Force Service Credit Regulations
OPM's reduction in force regulations found in part 351 are
published under authority of 5 U.S.C. 3502(a), which originated in
Public Law 78-359 (the Veterans' Preference Act of 1944). The statute
provides that OPM's reduction in force regulations must give effect to
four factors in releasing employees: (1) Tenure of employment (i.e.,
type of appointment) (5 U.S.C. 3502(a)(1)); (2) veterans' preference (5
U.S.C. 3502(a)(2)); (3) length of service (5 U.S.C. 3502(a)(3)); and
(4) performance ratings (5 U.S.C. 3502(a)(4)).
The proposed regulations clarify longstanding OPM policy on the
crediting of civilian and uniformed service for purposes of reduction
in force competition under part 351 of this title.
These final regulations cover what types of service are creditable
when an agency establishes the order of retention for competing
employees in a reduction in force.
The agency concurred with the proposed regulations as written,
including the provisions covering both reduction in force service
credit and access to retention records by employees and their
representatives.
The employee association objected to proposed Sec. 351.503(b)(3),
which provides that an employee may not receive dual reduction in force
service credit for service performed on active duty in the Armed Forces
that is concurrent with civilian employment as a Federal employee.
Proposed Sec. 351.503(b)(3) is adopted without revision. This
prohibition against double reduction in force service credit is
consistent with the provisions of the statute (i.e., 5 U.S.C.
3502(a)(3)), and longstanding appellate interpretation applicable to
OPM's governmentwide programs authorized by 5 U.S.C. (see Seltzer v.
Office of Personnel Management, 833 F.2d 975 (Fed. Cir., 1987)).
The two veterans' organizations objected to proposed
Sec. 351.503(b)(2)(i), which provides that a retired member of a
uniformed service who is receiving retired pay based upon 20 or more
years of active service in the Armed Forces is generally entitled to
credit under this part only for the length of time in active service in
the Armed Forces during a war, or active duty served in a campaign or
expedition for which a campaign badge or expeditionary medal has been
authorized.
Proposed Sec. 351.503(b)(2)(ii) provides that a retired member of a
uniformed service with 20 or more years of creditable active service in
the Armed Forces is entitled to reduction in force service credit for
all of that time only if the employee is considered a preference
eligible under 5 U.S.C. 3501(a)(3), as implemented in
Sec. 351.501(d)(1).
As covered in the summary below of the final reduction in force
service credit regulations, proposed Sec. 351.503(b)(2)(i) is adopted
without revision. The final regulation incorporates the statutory
requirements of 5 U.S.C. 3502(a)(A) and (B), which originated in Public
Law 88-448 (the Dual Compensation Act of 1964).
Referencing 5 U.S.C. 3501(a)(3)(A), 5 U.S.C. 3502(a)(B)(ii) (from
Pub. L. 88-448) provides that a retired member of a uniformed service
with 20 or more years of creditable Armed Forces service is entitled to
reduction in force retention service credit only if the individual is
receiving a disability retirement from the Armed Forces resulting from
injury or disease received in the line of duty as a direct result of
armed conflict, or caused by an instrumentality of war that incurred in
the line of duty during a period of war as defined by 38 U.S.C. 101 and
301. (OPM implements 5 U.S.C. 3501(a)(3)(A) in Sec. 351.501(d)(1) of
the reduction in force regulations.)
Summary of Final Reduction in Force Service Credit Regulations
Final Sec. 351.503(a) provides that all civilian service as a
Federal employee, as defined in 5 U.S.C. 2105(a), is creditable for
purposes of determining the reduction in force rights of a competing
employee. Civilian service that does not meet the definition set forth
in 5 U.S.C. 2105(a) is creditable for retention purposes only if
specifically authorized by statute.
Final Sec. 351.503(b)(2)(i) provides that, except as provided in
Sec. 351.503(b)(2)(ii), a retired member of a uniformed service who is
receiving retired pay based upon 20 or more years of active service in
the Armed Forces is entitled to credit under this part only for the
length of time in active service in the Armed Forces during a war, or
active duty served in a campaign or expedition for which a campaign
badge or expeditionary medal
[[Page 16798]]
has been authorized. (For additional information on
Sec. 351.503(b)(2)(i), refer to the Supplementary Information section
above with ``Comments on the Reduction in Force Service Credit
Regulations.'')
Final Sec. 351.503(b)(2)(ii) provides that a retired member of a
uniformed service with 20 or more years of creditable active service in
the Armed Forces is entitled to reduction in force service credit for
all of the individual's active service in the Armed Forces only if the
employee is considered a preference eligible under 5 U.S.C. 3501(a)(3),
as implemented in Sec. 351.501(d)(1).
Final Sec. 351.503(b)(3) provides that an employee may not receive
dual retention service credit for service performed on active duty in
the Armed Forces that was performed during concurrent civilian
employment as a Federal employee.
Final Sec. 351.503(c)(1) provides that the agency is responsible
for establishing both the service computation date, and the adjusted
service computation date, applicable to each employee competing for
retention. Also, the agency is responsible for adjusting the service
computation dates to withhold retention service credit for
noncreditable service.
Final Sec. 351.503(c)(2) provides that the service computation date
includes all actual creditable service under Secs. 351.503(a) and (b).
Final Sec. 351.503(c)(3) provides that the adjusted service
computation date includes all actual creditable service under
Secs. 351.503(a) and (b), and additional retention service credit for
performance authorized by Sec. 351.504(d).
Final Sec. 351.503(d) covers the calculation of the service
computation date for retention purposes.
Final Sec. 351.503(e) covers the calculation of the adjusted
service computation date that includes additional service credit for
retention purposes that is authorized by Sec. 351.504(d).
OPM further implements Sec. 351.503 through instructions found in
the OPM Operating Manual, ``The Guide to Processing Personnel
Actions,'' Chapter 6, ``Determining Creditable Service and Determining
Service Computation Dates (SCD's).''
Comments on the Reduction in Force Regulations Covering Retention
Records
As previously noted in the ``Comments (Overview)'' section of
Supplementary Information, the agency that commented on the proposals
concurred with the regulations as written, including the provisions on
both reduction in force service credit and access to retention records
by employees and their representatives.
The employee who commented on the proposed regulations only
addressed the provisions covering access to reduction in force records.
The employee supported the proposed regulations as written. The
employee added that, under the Privacy Act (see the following
paragraphs below for additional information on application of the
Privacy Act), her former agency denied her access to retention records
even after she received a specific notice of separation by reduction in
force. The employee concluded that proposed Sec. 351.505 would prevent
the recurrence of a similar situation for other employees reached for
reduction in force actions.
The employees' union objected to proposed Sec. 351.505(b)(1) on the
basis that the regulation violates 5 U.S.C. 552a(d)(1), which is part
of the Privacy Act. Specifically, the union argues that proposed
Sec. 351.505(b)(1) improperly limited employees' access to retention
records and related records only to an employee (including an
employee's representative) who actually receives a specific notice of
reduction in force. The employees' union also objected to proposed
Sec. 351.505(b)(1) on the basis that it violates Sec. 351.201(c), which
provides that each agency is responsible for applying OPM's reduction
in force regulations uniformly and consistently.
As covered in the summary below of the final reduction in force
service credit regulations, proposed Sec. 351.505(b)(1) is adopted
without revision.
The union is incorrect in its assertion that 5 U.S.C. 552a(d)(1) of
the Privacy Act is applicable to Sec. 351.505 and the retention records
that an agency develops under authority of part 351 of this chapter.
As noted by the union, 5 U.S.C. 552a(a)(5) states that ``the term
'system of records'' means a group of any records under the control of
any agency from which information is retrieved by the name of the
individual or by some identifying number, symbol, or other identifying
particular assigned to the individual.'' However, the retention records
covered by Sec. 351.505 are in fact ``retention register(s)'' developed
and maintained under authority of Sec. 351.404 rather than a system of
records covered by 5 U.S.C. 552a(d)(1) of the Privacy Act.
Information from retention registers is not first retrieved on the
basis of an employee's name or other personal identifying information,
but instead on the basis of groups of interchangeable positions, and
next on the basis of the four retention factors that define reduction
in force competition under part 351 of this chapter. Sec. 351.404(a)
provides in pertinent part that ``When a competing employee is to be
released from a competitive level under this part (i.e., part 351 of
this chapter), the agency shall establish a separate retention register
for that ``competitive level. The retention register is prepared from
the current retention records of employees.'' (Emphasis added for
reference.)
Section 351.403 similarly provides that each competitive level
(which serves as the basis for a retention register) is developed first
from the agency's identification and retrieval of groups of positions
rather than the names or other identifying information of individual
employees. Specifically, Sec. 351.403(a)(1) and (2) provide that ``(1)
Each agency shall establish competitive levels consisting of all
positions in a competitive area which are in the same grade (or
occupational level) and classification series, and which are similar
enough in duties, qualification requirements, pay schedules, and
working conditions so that the agency may reassign the incumbent of one
position to any of the other positions in the level without undue
interruption.
``(2) Competititive level determinations are based on each
employee's official position, not the employee's personal
qualifications.''
Accepting the union's argument that 5 U.S.C. 552a(d)(1) of the
Privacy Act is applicable to Sec. 351.505, and a retention register
developed and maintained under authority of Sec. 351.404, would mean
that a released employee (and the employee's representative) does not
have access to any retention records that contained the name, or other
identifying retention (such as service dates), of employees competing
for positions in the reduction in force. This would result in the same
situation described by the employee who commented above on the proposed
regulations that, because of its interpretation of the Privacy Act, her
agency denied her access to any retention records containing specific
information relating to other employees in her competitive area.
The union is also incorrect in its conclusion that proposed
Sec. 351.505(b) violates Sec. 351.201(c), which provides that ``Each
agency is responsible for assuring that the provisions in this part
(i.e., part 351 of this chapter) are uniformly and consistently applied
in any one reduction in force.''
Proposed Sec. 351.505(b) for the first time requires agencies to
provide retention records to the representative of an employee who has
received a
[[Page 16799]]
specific notice of reduction in force. Previously, there was no
authority in OPM's regulations for agencies to provide union
representatives (or any individual other than the employee) with this
essential information unless the employee subsequently filed a
reduction in force appeal or grievance.
Similarly, proposed Sec. 351.505(c) for the first time specifies
the type of retention-related information that an agency would be
required to make available to an employee (and/or the employee's
representative) who is reached for a reduction in force action. For
example, the agency would now be required to provide employees (and
their representatives) with access to retention records evidencing how
the employee was reached for release from the competitive level, as
well as any records related to an employee's potential bump and retreat
rights. No longer could an agency claim that it met its obligation to
provide retention information to a released employee by simply giving
the employee a ``sanitized'' retention register with all of the
pertinent information blocked out.
The union is correct in stating that proposed Sec. 351.505(b) would
not extend access to agencies' retention records to the public realm.
However, the union is incorrect in its argument that proposed
Sec. 351.505(b)(1) violates present Sec. 351.201(c), which provides
that an agency must apply OPM's reduction in force regulations
uniformly and consistently.
OPM clearly recognizes that reduction in force actions impact upon
people, sometimes even resulting in actions such as involuntary
separations and downgradings. Proposed Sec. 351.505(b) respects the
privacy of all individual employees who have received notices of
reduction in force actions while still providing them (and their
representatives) with a right to relevant information concerning their
agency's application of reduction in force procedures to them.
Similarly, Sec. 351.201(c) requires that the agency must apply the
same retention procedures to all employees who received specific
reduction in force notices (e.g., the agency may not establish
different competitive areas based upon grades or classification
series). There is no basis for the union to expand the scope of
Sec. 351.201(c) and conclude that any employee (or the employee's
representative) has the right to view all retention registers. Again,
we believe that the policy in proposed Sec. 351.505(b) provides each
employee who is reached for a reduction in force action with full
information concerning how the agency determined the employee's
retention rights, while still recognizing the personal sensitivity of
the situation.
Also, the union is incorrect in stating that proposed
Sec. 351.505(b) violates 5 U.S.C. 7114(b)(4), which requires an agency
to furnish information to a union that is acting as a collective
bargaining agent. The union argues that because proposed
Sec. 351.505(b) would limit unions' access to employees' retention
records, the regulation would constitute an unfair labor practice under
5 U.S.C. 7114(b)(4).
In fact, 5 U.S.C. 7114(b)(4) specifically states that an agency
must furnish a union certain information ``to the extent not prohibited
by law.'' To the extent that proposed Sec. 351.505(b) prohibits release
of information to unions concerning reduction in force retention
records, the release of that information is ``prohibited by law'' for
purposes of 5 U.S.C. 7114(b)(4). OPM's interpretation is that proposed
Sec. 351.505(b) is a regulation that has the force and effect of law.
Therefore, proposed Sec. 351.505(b) could not, and does not, violate 5
U.S.C. 7114(b)(4), which is the applicable controlling statute.
Finally, the union objected to proposed Sec. 351.505(f), which
provides that an agency must preserve all registers and records
relating to a reduction in force for at least 1 year after the date the
agency issues specific notices of reduction in force. As an
alternative, the union asked that OPM require agencies to retain all
records related to a reduction in force for at least 5 years.
As covered in the summary below of the final reduction in force
service credit regulations, proposed Sec. 351.505(f) is adopted without
revision.
The union maintained that proposed Sec. 351.505(f) would limit the
ability of employees to file appeals or grievances that would
potentially establish a link between agency actions in a current
reduction in force with one or more previous reduction in force actions
conducted by the agency more than 1 year ago. The union used examples
such as an employee competing in successive reduction in force actions
on a one person competitive level.
The union is incorrect in its assumptions.
Reduction in force actions under authority of part 351 of this
chapter are based upon organizational changes, as defined in
Sec. 351.201(a)(2), in which employees compete for retention based upon
the four factors set forth in 5 U.S.C. 3502(a) (1)-(4).
Section 351.506(a) provides that an employee's rights and benefits
in a single reduction in force are based upon the effective date of
that reduction in force action. An employee who is separated or
downgraded by reduction in force under authority of part 351 and
believes that the agency improperly applied OPM's reduction in force
regulations in determining the employee's retention rights in that
reduction in force has a basic right, as applicable, to file a timely
appeal to the Merit Systems Protection Board, or to file a grievance
under the provisions of a controlling collective bargaining agreement.
(For reference, Sec. 351.901 provides that a separated or
downgraded employee has a basic right to file an appeal to the Merit
Systems Protection Board; Sec. 1201.22(b) of the Board's regulations
provides that the employee must file the appeal within 30 days of the
effective date of the reduction in force action. Section 1201.3(c)(1)
of the Board's regulations provides that an employee who is covered by
a collective bargaining agreement under 5 U.S.C. 7121 has a basic right
to follow the negotiated grievance procedures contained in the
agreement for resolving any action that could otherwise be appealed to
the Board, except as otherwise provided in Sec. 1201.3(c).)
Turning to the union's example, the fact that an employee was
placed in a one person competitive level for two reduction in force
actions likely means that the employee simply continues to hold the
same unique position. As previously noted, Sec. 351.201(c) provides
that the agency is responsible ``* * * for assuring that the provisions
in this part are uniformly and consistently applied in any one
reduction in force.'' (Emphasis added for reference.) Similarly, since
Sec. 351.506(a) provides that an employee's retention rights and
benefits in a single reduction in force are based upon the effective
date of that reduction in force action, each reduction in force is a
distinct event for which the agency is responsible under authority of
Sec. 351.204. There is no relation between retention records used in a
prior reduction in force and records in a later reduction in force.
OPM believes that, again consistent with agency responsibility
under authority of Sec. 351.204, the agency may determine whether or
not to retain retention records for more than 1 year, as well as the
length of the extended retention. For example, an agency may decide to
retain the retention records resulting from actions affecting 100
employees longer than retention records resulting from the closure of a
duty station staffed with three employees.
[[Page 16800]]
Summary of Final Reduction in Force Regulations on Retention
Records
Final Sec. 351.505(a) provides that the agency is responsible for
maintaining the correct personnel records that are used to determine
employees' retention standing.
Final Sec. 351.505(b) provides that the agency must allow its
retention registers and related records to be inspected by an employee
of the agency who has received a specific reduction in force notice,
and/or the employee's representative if the representative is acting on
behalf of that individual employee. Previously, there was no authority
permitting an employee's representative to have access to pertinent
retention records. The representative now has access to pertinent
retention records when acting on behalf of an individual employee who
has received a specific notice of reduction in force under part 351 of
this chapter.
Final Sec. 351.505(b) also provides that an authorized
representative of OPM has the right to review an agency's retention
records.
Final Sec. 351.505(c) provides that an employee who has received a
specific notice of reduction in force has the right to review any
completed records used by the agency in a reduction in force action
that was taken, or will be taken, against the employee.
Final Sec. 351.505(d) provides that an employee who has not
received a specific reduction in force notice has no right to review
the agency's retention registers and related records.
Final Sec. 351.505(e) provides that the agency is responsible for
ensuring that each employee's access to retention records is consistent
with both the Freedom of Information Act and the Privacy Act.
Final Sec. 351.505(f) provides that the agency must preserve all
registers and records relating to a reduction in force for at least 1
year after the date the agency issues specific reduction in force
notices.
Regulatory Flexibility Act
I certify that this regulation will not have a significant economic
impact on a substantial number of small entities because it only
affects Federal employees.
List of Subjects in Part 351
Administrative practice and procedure, Government employees, U.S.
Office of Personnel Management.
Janice R. Lachance,
Director.
Accordingly, OPM is amending part 351 of title 5, Code of Federal
Regulations, as follows:
PART 351--REDUCTION IN FORCE
1. The authority citation for part 351 continues to read as
follows:
Authority: 5 U.S.C. 1302, 3502, 3503; sec. 351.801 also issued
under E.O. 12828, 58 FR 2965.
2. Section 351.503 is revised to read as follows:
Sec. 351.503 Length of service.
(a) All civilian service as a Federal employee, as defined in 5
U.S.C. 2105(a), is creditable for purposes of this part. Civilian
service performed in employment that does not meet the definition of
Federal employee set forth in 5 U.S.C. 2105(a) is creditable for
purposes of this part only if specifically authorized by statute as
creditable for retention purposes.
(b)(1) As authorized by 5 U.S.C. 3502(a)(A), all active duty in a
uniformed service, as defined in 5 U.S.C. 2101(3), is creditable for
purposes of this part, except as provided in paragraphs (b)(2) and
(b)(3) of this section.
(2) As authorized by 5 U.S.C. 3502(a)(B), a retired member of a
uniformed service who is covered by Sec. 351.501(d) is entitled to
credit under this part only for:
(i) The length of time in active service in the Armed Forces during
a war, or in a campaign or expedition for which a campaign or
expedition badge has been authorized; or
(ii) The total length of time in active service in the Armed Forces
if the employee is considered a preference eligible under 5 U.S.C. 2108
and 5 U.S.C. 3501(a), as implemented in Sec. 351.501(d).
(3) An employee may not receive dual service credit for purposes of
this part for service performed on active duty in the Armed Forces that
was performed during concurrent civilian employment as a Federal
employee, as defined in 5 U.S.C. 2105(a).
(c)(1) The agency is responsible for establishing both the service
computation date, and the adjusted service computation date, applicable
to each employee competing for retention under this part. If
applicable, the agency is also responsible for adjusting the service
computation date and the adjusted service computation date to withhold
retention service credit for noncreditable service.
(2) The service computation date includes all actual creditable
service under paragraph (a) and paragraph (b) of this section.
(3) The adjusted service computation date includes all actual
creditable service under paragraph (a) and paragraph (b) of this
section, and additional retention service credit for performance
authorized by Sec. 351.504(d).
(d) The service computation date is computed on the following
basis:
(1) The effective date of appointment as a Federal employee under 5
U.S.C. 2105(a) when the employee has no previous creditable service
under paragraph (a) or (b) of this section; or if applicable,
(2) The date calculated by subtracting the employee's total
previous creditable service under paragraph (a) or (b) of this section
from the most recent effective date of appointment as a Federal
employee under 5 U.S.C. 2105(a).
(e) The adjusted service computation date is calculated by
subtracting from the date in paragraph (d)(1) or (d)(2) of this section
the additional service credit for retention authorized by
Sec. 351.504(d).
3. Section 351.505 is revised to read as follows:
Sec. 351.505 Records.
(a) The agency is responsible for maintaining correct personnel
records that are used to determine the retention standing of its
employees competing for retention under this part.
(b) The agency must allow its retention registers and related
records to be inspected by:
(1) An employee of the agency who has received a specific reduction
in force notice, and/or the employee's representative if the
representative is acting on behalf of the individual employee; and
(2) An authorized representative of OPM.
(c) An employee who has received a specific notice of reduction in
force under authority of subpart H of this part has the right to review
any completed records used by the agency in a reduction in force action
that was taken, or will be taken, against the employee, including:
(1) The complete retention register with the released employee's
name and other relevant retention information (including the names of
all other employees listed on that register, their individual service
computation dates calculated under Sec. 351.503(d), and their adjusted
service computation dates
[[Page 16801]]
calculated under Sec. 351.503(e)) so that the employee may consider how
the agency constructed the competitive level, and how the agency
determined the relative retention standing of the competing employees;
and
(2) The complete retention registers for other positions that could
affect the composition of the employee's competitive level, and/or the
determination of the employee's assignment rights (e.g., registers to
which the released employee may have potential assignment rights under
Sec. 351.701(b) and (c)).
(d) An employee who has not received a specific reduction in force
notice has no right to review the agency's retention registers and
related records.
(e) The agency is responsible for ensuring that each employee's
access to retention records is consistent with both the Freedom of
Information Act (5 U.S.C. 552), and the Privacy Act (5 U.S.C. 552a).
(f) The agency must preserve all registers and records relating to
a reduction in force for at least 1 year after the date it issues a
specific reduction in force notice.
[FR Doc. 99-8587 Filed 4-6-99; 8:45 am]
BILLING CODE 6325-01-P
