[Federal Register Volume 59, Number 33 (Thursday, February 17, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-3617]


[[Page Unknown]]

[Federal Register: February 17, 1994]


                                                    VOL. 59, NO. 33

                                        Thursday, February 17, 1994
      

OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 772

RIN 3206-AF76

 

Interim Relief

AGENCY: Office of Personnel Management.

ACTION: Proposed rule.

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SUMMARY: The U.S. Office of Personnel Management (OPM) is publishing a 
proposed change to regulations reflecting administrative case law on 
taking personnel actions to provide interim relief under the 
Whistleblower Protection Act of 1989. These changes also reflect OPM's 
initiative to sunset the Federal Personnel Manual.

DATES: Comments must be received on or before April 18, 1994.

ADDRESSES: Written comments may be sent or delivered to Marjorie A. 
Marks, Chief, Family Programs and Employee Relations Division, Office 
of Labor Relations and Workforce Performance, U.S. Office of Personnel 
Management, room 7412, 1900 E Street NW., Washington, DC 20415.

FOR FURTHER INFORMATION CONTACT:
Gary D. Wahlert (202) 606-2920.

SUPPLEMENTARY INFORMATION: The Whistleblower Protection Act of 1989 
(WPA), Public Law 101-12 codified at 5 U.S.C. 7701(b)(2)(A), provided 
that prevailing parties in an appeal to the Merit Systems Protection 
Board (MSPB) shall be granted the relief provided in the decision, and 
remaining in effect pending the outcome of any petition for review. OPM 
published final regulations on this subject in the Federal Register on 
January 31, 1992 (57 FR 3707-3715). The final regulations authorized 
agencies to take interim personnel actions to provide a prevailing 
applicant or employee the interim relief ordered in an MSPB initial 
decision. Interim personnel actions include, but are not limited to, 
interim appointments, interim repromotions after demotions, and interim 
within-grade increases.
    After these regulations were published, the Merit Systems 
Protection Board (MSPB) issued an administrative decision in Leonard 
Ginocchi v. Department of Treasury, DC315I8910527, February 19, 1992, 
which explained MSPB's interpretation of the WPA with regard to interim 
relief. In Ginocchi, the Board ruled that it would not look behind the 
agency's determination under 5 U.S.C. 7701(b)(2)(A) that returning an 
employee to the workplace would be unduly disruptive. It also held that 
an agency making a determination of undue disruption did not have to 
keep the employee on excused absence (administrative leave), but could 
place the employee in other duties. OPM believes this facet of Ginocchi 
is a reasonable and persuasive interpretation of the WPA. Since this 
interpretation is inconsistent with a portion of OPM's regulations 
(which was based on a more restrictive interpretation), OPM is 
proposing to delete that portion of the regulations--section 
772.102(d). This change will help reduce any confusion by practitioners 
before the Board about their respective rights and responsibilities 
regarding interim relief.
    In addition, OPM notes that guidance on preparing official 
documentation to effect an interim personnel action is currently 
located in Federal Personnel Manual Supplement 296-33. The current 
regulations provide that interim relief actions need to be prepared in 
accordance with that guidance and other guidance contained in FPM 
Chapter 296. Consistent with OPM's initiative to sunset the FPM, OPM 
proposes to delete references in the regulation to the FPM.

E.O. 12291, Federal Regulation

    OPM has determined that this is not a major rule as defined under 
Section 1(b) of E.O. 12291, Federal Regulation.

Regulatory Flexibility Act

    I certify that this regulation will not have a significant economic 
impact on a substantial number of small entities because it applies 
only to Federal employees.

List of Subjects in 5 CFR Part 772

    Administrative practice and procedure; Government employees.

U.S. Office of Personnel Management.
James B. King,
Director.

    Accordingly, OPM proposes to amend part 772 of title 5 of the Code 
of Federal Regulations as follows:

PART 772--INTERIM RELIEF

    1. The authority citation for part 772 continues to read as 
follows:

    Authority: 5 U.S.C. 1302, 3301, 3302, and 7301; Pub. L. 101-12.


Sec. 772.102  [Amended]

    2. Section 772.102 is amended by removing paragraphs (d) and (g); 
redesignating paragraphs (e) and (f) as paragraphs (d) and (e) 
respectively; and by removing the semicolon and the word ``and'' at the 
end of redesignated paragraph (e) and inserting a period in its place.

[FR Doc. 94-3617 Filed 2-16-94; 8:45 am]
BILLING CODE 6325-01-M