00-26945. Reduction in Force Retreat Rights

AGENCY:

Office of Personnel Management.

ACTION:

Interim rule with request for comments.

SUMMARY:

The Office of Personnel Management is issuing an interim retention regulation that clarifies a released employee's potential right to “Retreat” to another position in a reduction in force. This regulation states that an agency determines the potential grade range of a released employee's retreat right solely upon the position held by the employee on the effective date of the reduction in force rather than the grade range of the position to which the employee may have a right to retreat.

DATES:

This regulation is effective on October 20, 2000. Written comments will be considered if received no later than December 19, 2000.

ADDRESSES:

Send written comments to Carol J. Okin, Associate Director for Employment, Office of Personnel Management, Room 6F08, 1900 E Street, NW., Washington, DC 20415.

FOR FURTHER INFORMATION CONTACT:

Thomas A. Glennon or Jacqueline R. Yeatman, 202-606-0960, FAX [phone].

SUPPLEMENTARY INFORMATION:

Purpose of This Interim Retreat Regulation

This interim regulation clarifies OPM's longstanding policy that an agency determines the grade or grade-interval range of a released employee's potential retreat rights solely on the basis of the official position of record held by the employee on the effective date of the reduction in force. See 51 FR 319 (January 3, 1986). In determining an employee's potential retreat rights, an agency does not consider the grade or grade-interval range of the position to which the employee may have a retreat right.

OPM is publishing this interim regulation in response to a January 28, 2000, decision by the United States Court of Appeals for the Federal Circuit in Henderson v. Department of the Interior, 202 F.3d 1356 (Fed. Cir. 2000). In Henderson, the Court interpreted our regulations as meaning something different from what OPM had intended. As a result, the Court found that an agency determines an employee's potential retreat right, in part, on the basis of the grade or grade-interval range of the position to which the employee may have a right to retreat. This new interim regulation reinforces OPM's intent that an agency determines an employee's potential retreat rights only on the basis of the employee's current official position of record.

Employees' Retreat Rights

Section 351.603 of OPM's retention regulations provides that a permanent competitive service employee who is released from a competitive level as the result of reduction in force competition has a potential “Bump” or “Retreat” right to other continuing positions before involuntary separation. For reference, OPM published a comprehensive history and explanation of the retreat right in the Supplementary Information section of final regulations that were published in the Federal Register on June 15, 1998, at 63 FR 32593.

Consideration of Grade Limits in Determining Employees' Retreat Rights

OPM's reduction in force regulations generally limit the grade limits of an employee's potential bump and retreat rights to positions that are within, as appropriate, three grades or grade-intervals of the official position held on the effective date of the reduction in force. In addition, a preference eligible employee who competes under OPM's retention regulations in retention tenure subgroup I-AD on the basis of a service-connected compensable disability of 30% (or higher) has a potential retreat right to positions that are within, as appropriate, five grades or grade intervals of the official position held on the effective date of the reduction in force.

Waiver of Notice of Proposed Rulemaking and Delay in Effective Date

Pursuant to 5 U.S.C. 553(b)(3)(B), I find that good cause exists for waiving the general notice of proposed rulemaking because it would be contrary to the public interest to delay access to benefits provided by law. Also, pursuant to 5 U.S.C. 553(d)(3), I find that good cause exists to waive the effective date and make this amendment effective in less than 30 days in order to provide eligible displaced employees with the full benefit of their retreat rights at the earliest practicable date.

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.

Executive Order 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 351

• Administrative practice and procedure
• Government employees

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 351.701(c) is revised to read as follows:

§ 351.701

Assignment involving displacement.

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(c) Same subgroup-retreating. A released employee shall be assigned in accordance with paragraphs (a) and (d) of this section and retreat to a position that:

(1) Is held by another employee with lower retention standing in the same tenure group and subgroup; and

(2) Is not more than three grades (or appropriate grade intervals or equivalent) below the position from which the employee was released, except that for a preference eligible employee with a compensable service-connected disability of 30 percent or more the limit is five grades (or appropriate grade intervals or equivalent). (The agency uses the grade progression of only the released employee's position of record to determine the applicable grades (or appropriate grade intervals or equivalent) of the employee's retreat right. The agency does not consider the grade progression of the position to which the employee has a retreat right.); and

(3) Is the same position, or an essentially identical position, formerly held by the released employee on a permanent basis as a competing employee in a Federal agency (i.e., when held by the released employee in an executive, legislative, or judicial branch agency, the position would have been placed in tenure groups I, II, or III, or equivalent). In determining whether a position is essentially identical, the determination is based on the competitive level criteria found in § 351.403, but not necessarily in regard to the respective grade, classification series, type of work schedule, or type of service, of the two positions.

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