[Federal Register Volume 63, Number 114 (Monday, June 15, 1998)]
[Rules and Regulations]
[Pages 32593-32595]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-15860]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 63, No. 114 / Monday, June 15, 1998 / Rules
and Regulations
[[Page 32593]]
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OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 351
RIN 3206-AG77
Reduction in Force Retreat Right
AGENCY: Office of Personnel Management.
ACTION: Final rulemaking.
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SUMMARY: The Office of Personnel Management (OPM) is issuing final
regulations that clarify employees' ``Retreat'' rights. These final
regulations also clarify the content of specific reduction in force
notices.
DATES: These regulations are effective July 15, 1998.
FOR FURTHER INFORMATION CONTACT: Thomas A. Glennon or Jacqui R.
Yeatman, (202) 606-0960, FAX (202) 606-2329.
SUPPLEMENTARY INFORMATION:
Background
On August 25, 1995, OPM published interim retention regulations (60
FR 44254) that clarified the procedures agencies use to determine
employees' rights to ``retreat'' to positions during a reduction in
force. These regulations also clarified what information agencies must
provide employees who receive a specific notice of reduction in force.
Interested parties could provide OPM with written comments during the
period covering 60 days from the date of publication.
Comments
OPM received seven comments on the retreat right provisions found
in these interim regulations: four from agencies, and three from
individual employees. OPM did not receive any comments on the revised
notice provisions of the regulations.
One agency supported the regulations as written. Two agencies
suggested that OPM further clarify how agencies determine employees'
retreat rights in specific situations. The fourth agency suggested that
OPM limit employees' retreat rights only to positions that the present
agency can readily document (i.e., positions in the employee's present
agency).
Of the three comments from individual employees, two employees
suggested that OPM provide additional material covering how agencies
determine retreat rights, while the third employee believed that the
interim regulations expanded rather than clarified employees' retreat
rights.
The agency comment suggesting that the retreat right be redefined
to provide a more restrictive standard was not adopted.
The comments from two of the agencies and all three of the
employees asking for clarification of how agencies determine retreat
rights are reflected in the following material that explains the scope
and purpose of these final regulations on retreat.
Final Regulations-Retreat Rights
OPM is now publishing final retention regulations that further
clarify employees' retreat rights. Final Sec. 351.701(c)(3) provides
that an employee has the right to retreat to the same position, or an
essentially identical position, formerly held by the released employee
on a permanent basis in a Federal agency. Final Sec. 351.701(c)(3)
further clarifies that the agency determines an employee's retreat
right based only on former positions in any Federal agency that the
released employee held as a competing employee, or equivalent (i.e.,
when held by the released employee, the position would have been placed
in tenure group I, II, or III, or equivalent).
In defining what constitutes ``an essentially identical position''
for this purpose, final Sec. 351.701(c)(3) still provides that in
determining whether a position is essentially identical, the agency
uses the competitive level criteria found in Sec. 351.403, but without
regard to the respective grade, classification series, type of work
schedule, or type of service, of the two positions. Consistent with
OPM's interpretation of its own regulations, this reflects the
longstanding history of retreat as a narrow right of same subgroup
bumping limited to actual positions formerly held by a released
employee, rather than a broader form of same subgroup bumping based
upon a return to the same general occupation based upon personal
qualifications for that position.
Effective August 22, 1947, the retreat right was originally
incorporated in 5 CFR part 20.9 of the former U.S. Civil Service
Commission's retention regulations. In 1954 the Commission began to use
the term ``retreat'' in referring to this form of same subgroup bumping
that was limited to positions from which, or in the same line of work
through which, a released employee had previously been promoted.
The retreat right was based upon the assumption that a released
employee who was so successful in performing a prior position that the
employee was promoted to another position should be allowed to return
to the former position if (1) the former position was substantially the
same, and (2) because of higher same subgroup retention standing than
the present incumbent of the position, the released employee would not
be released from the retention register that includes the former
position.
In final regulations published by OPM on January 3, 1986 (51 FR
319), the retreat right was expanded to include positions held on a
permanent basis in the Federal service by the released employee without
regard to whether the employee was promoted from that position (i.e.,
the retreat right now includes positions vacated because of
reassignment and transfer). Consistent with this expansion of retreat
rights, the January 3, 1986, revision also excludes positions that were
simply in the same line of work through which a released employee had
previously been promoted, but which the employee had not actually held.
These final retention regulations intend that agencies use a narrow
modified competitive level standard set forth in Sec. 351.701(c)(3) to
determine an employee's retreat rights to an essentially identical
position. This is consistent with OPM's as well as the former
Commission's, longstanding definition of the competitive level as the
basic standard for retreat rights. Also, this revision addresses the
issue of what constitutes an ``essentially identical'' position in the
wake of the decisions of the Merit Systems Protection Board in
Parkhurst v. Department of
[[Page 32594]]
Transportation, 70 M.S.P.R. 309 (1995), and Pigford v. Department of
the Interior, 75 M.S.P.R. 251 (1996).
Because retreat is a narrow right, Sec. 351.701(c)(3) does not
intend to provide a more disruptive, broader range of same subgroup
bumping that, based upon personal qualifications, would provide a
released employee with the right to displace a lower-standing employee
solely because the released employee formerly held a position in the
same general line of work.
At its discretion, an agency may provide a broader assignment
opportunity to released employees that is primarily based on the
personal qualifications set forth in section 351.702(a). However, this
alternative is not applicable to a determination of an employee's
retreat rights under authority of Sec. 351.701(c).
As requested in several comments on the interim regulations, the
following four examples of retreat rights are reprinted from the
Supplementary Information material in the interim retention regulations
that OPM published on August 25, 1995 (60 FR 44254).
Examples of Retreat Rights
Example number 1: A GS-7 employee formerly held a GS-322-5
position. Because of a new classification standard, the GS-322-5 is
reclassified to a GS-326-5 with no change in duties, responsibilities,
and qualifications. This regulation clarifies that the GS-7 employee
would have a right to retreat to the GS-326-5 position held by a lower-
standing employee if the agency determines that the employee's former
GS-322-5 position and the GS-326-5 position are otherwise essentially
identical using the competitive level test found in 5 CFR 351.403.
Example number 2: A WG-4204-10 employee formerly held a WG-4204-7
position. Because of classification error, the WG-4204-7 position is
reclassified to a WG-4204-8 with no change in duties, responsibilities,
and qualifications. This regulation clarifies that the WG-4204-10
employee would have a right to retreat to the WG-4204-8 position held
by a lower-standing employee if the agency determines that the
employee's former WG-4204-7 position and the WG-4204-8 position are
otherwise essentially identical using the competitive level test found
in 5 CFR 351.403.
Example number 3: A full-time GS-343-11 employee formerly held a
part-time GS-343-7 position. This regulation clarifies that the full-
time GS-343-11 employee would have a right to retreat to a full-time
GS-343-7 held by a lower-standing employee if the agency determines
that the employee's former part-time GS-343-7 position and the GS-343-7
position are otherwise essentially identical using the competitive
level test found in 5 CFR 351.403.
Example number 4: A GS-334-11 competitive service employee formerly
held a GS-334-7 position under an excepted service Veterans
Readjustment Appointment (VRA). This regulation clarifies that the GS-
334-11 employee would have a right to retreat to a GS-334-7 position
held by a lower-standing competitive service employee if the agency
determines that the employee's former GS-334-7 VRA position and the GS-
334-7 position are otherwise essentially identical using the
competitive level test found in 5 CFR 351.403.
Final Regulations--Reduction in Force Notices
OPM is publishing final regulations on reduction in force notices
with revision only to an applicable section of statute cited in
Sec. 351.801(a)(2). Section 351.801(a)(2) provides that, from January
20, 1993, through January 31, 2000, each competing employee of the
Department of Defense is entitled, under implementing regulations
issued by that agency, to a specific written notice at least 120 full
days before the effective date of release when a significant number of
employees will be separated from a competitive area by reduction in
force. This provision is consistent with section 341(a) of Pub. L. 103-
337. (Sec. 351.801(a)(2) had contained a reference to section 911(a) of
Pub. L. 103-337.)
Section 351.802(a)(1) provides that a specific reduction in force
notice must cover the action to be taken, the effective date of the
action, and the reasons for the action. This provision is consistent
with statutory requirements set forth in 5 U.S.C. 3502(d)(2)(A).
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, Section 351.801 also
issued under E.O. 12828, 58 FR 2965.
2. In Sec. 351.701, paragraph (c)(3) is revised to read as follows:
Sec. 351.701 Assignment involving displacement.
* * * * *
(c) * * *
(3) Is the same position, or an essentially identical position,
formerly held by the released employee 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
Sec. 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.
* * * * *
3. In Sec. 351.801, paragraph (a)(2) is revised to read as follows:
Sec. 351.801 Notice period.
(a) * * *
(2) Under authority of section 4433 of Pub. L. 102-484, as amended
by section 341(a) of Pub. L. 103-337, each competing employee of the
Department of Defense is entitled, under implementing regulations
issued by that agency, to a specific written notice at least 120 full
days before the effective date of release when a significant number of
employees will be separated by reduction in force. The 120 days notice
requirement is applicable during the period from January 20, 1993,
through January 31, 2000. The basic requirement for 60 full days
specific written notice set forth in paragraph (a) of this section is
still applicable when less than a significant number of employees will
be separated by reduction in force.
* * * * *
4. In Sec. 351.802, paragraph (a)(1) is revised to read as follows:
[[Page 32595]]
Sec. 351.802 Content of notice.
(a)(1) The action to be taken, the reasons for the action, and its
effective date;
* * * * *
[FR Doc. 98-15860 Filed 6-12-98; 8:45 am]
BILLING CODE 6325-01-P
