[Federal Register Volume 60, Number 7 (Wednesday, January 11, 1995)]
[Rules and Regulations]
[Pages 2677-2680]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-643]



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 Rules and Regulations
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  Federal Register / Vol. 60, No. 7 / Wednesday, January 11, 1995 / 
Rules and Regulations  

[[Page 2677]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 351

RIN 3206-AF00; 3206-AF42; 3206-AF63


Reduction in Force Notice-Certification of Expected Separation; 
Exception to 60 Days Specific Notice; Permissive Temporary Exception

AGENCY: Office of Personnel Management.

ACTION: Final rulemaking.

-----------------------------------------------------------------------

SUMMARY: The Office of Personnel Management (OPM) is issuing final 
reduction in force (RIF) regulations that authorize: an agency to issue 
a Certification of Expected Separation to an employee who the agency 
expects will be separated within 6 months by RIF; the Director of OPM 
to approve a (RIF) notice period of less than 60 days specific written 
notice in unforeseeable circumstances; and, an agency to make a 
permissive temporary exception for more than 90 days past the RIF 
effective date to satisfy a Government obligation to an employee.

DATES: Final rules effective February 10, 1995.

FOR FURTHER INFORMATION CONTACT:
Thomas A. Glennon or Edward P. McHugh, Workforce Restructuring Office, 
(202) 606-0960; FAX (202) 606-0390.

SUPPLEMENTARY INFORMATION: 

Certification of Expected Separation

    On May 26, 1992, OPM published interim regulations in the Federal 
Register at 57 FR 21890 with a 60 day comment period. The regulations 
were inadvertently deleted by regulations published June 8, 1993 (58 FR 
32046). To correct this error, the regulations were republished for 
information in the Federal Register on June 27, 1994, at 59 FR 32871.
    These interim regulations allowed agencies to issue employees a 
Certification of Expected Separation (CES) if the agency found that the 
employee would likely be separated within 6 months by RIF. The CES 
notice allows employees to register early for outplacement and 
retraining services provided by the agency, OPM, and programs under the 
Job Training Partnership Act (JTPA) administered by the Department of 
Labor.
    OPM received fourteen written comments on these interim 
regulations: Nine from agencies and five from State or local 
governmental units or their representatives. All of the comments 
favored the CES option. After consideration of the comments, the 
interim regulations are published without revision.
    Each comment addressed employees' eligibility for the JTPA after 
receiving a CES.
    Eight recommended a minimum CES notice period longer than the 6 
month limit provided in 5 CFR 351.807(a) of the interim regulations. 
After reviewing these comments, we left the 6 month limit unchanged 
because the maximum time period was consistent with the Department of 
Labor's policy.
    Five requested broader eligibility criteria for registration in the 
JTPA. Again, we left the eligibility requirements unchanged because we 
believe 5 CFR 351.807(a) is consistent with the Department of Labor's 
policy.
    Other comments asked that OPM issue technical guidance to clarify 
receipt of a CES on employees' eligibility for OPM's interagency 
placement programs and the reemployment priority list. We will provide 
this guidance to agencies through other sources.

The Discretionary Temporary Exception to the Order of Release and the 
Liquidation Provision

    On May 27, 1994, OPM published proposed regulations in the Federal 
Register at 59 FR 27509 with a 60 day comment period. These regulations 
proposed elimination of the 90 day limit on the use of a permissive 
temporary exception to satisfy a Government obligation to an employee 
during a RIF. These regulations also proposed extending the time limit 
for use of the liquidation provision because of closure from 90 days to 
120 days.
    OPM received three written comments on these proposed regulations: 
Two from agencies, and one from an individual who suggested other 
changes to the RIF system.
    Both agencies favored our proposed change to provide that an agency 
may use a permissive temporary exception without time limitation to 
satisfy a Government obligation to the retained employee. For example, 
a Department of Defense employee is entitled to 120 days written 
specific notice before release in a significant RIF. If the activity 
conducting the RIF subsequently finds that it must make a worse offer 
than that specified in the employee's original RIF notice, the employee 
is entitled to a new RIF notice period of 120 days. This means that the 
activity must use a permissive temporary exception to retain the 
released employee on its rolls past the effective date of the RIF in 
order to meet its notice obligation. Under a permissive temporary 
exception, the activity determines the released employee's retention 
rights on the effective date of the RIF, but the activity does not 
actually implement the action until it provides the employee with full 
specific notice of the RIF.
    In conforming changes, 5 CFR 351.608(c) is redesignated as 5 CFR 
351.608(d) and 5 CFR 351.608(d) is redesignated as 5 CFR 351.608(e).
    One agency also requested that OPM expand the liquidation provision 
found in 5 CFR 351.605 from the present 90 days to 1 year. The 
liquidation provision in 5 CFR 351.605 allows a closing activity to 
release employees without regard to their respective service dates in a 
closure situation, provided that the employees have the same tenure and 
veterans' preference status.
    Under the current regulations, a liquidation situation exists when 
an agency will abolish all positions in a competitive area within 90 
days. In separating employees by RIF, the agency must release employees 
in group and subgroup order consistent with 5 CFR 351.601(a). (An 
agency may not apply this section to release an employee who is 
entitled to retention in the subgroup under 5 CFR 351.606 because of 
reemployment after military service.) However, the liquidation 
provision permits the agency, at its discretion, to release employees 
within a subgroup

[[Page 2678]]

regardless of the employees' relative retention standing for up to 90 
days before closure of an activity. The 90 day liquidation provision 
was implemented when the minimum specific RIF notice period was 30 days 
rather than the present standard of 60 days notice (i.e., the 
liquidation provision was three times the basic RIF notice period).
    We proposed revision of 5 CFR 351.605 to provide that the 
liquidation provision is applicable in a closure situation when an 
agency will abolish all positions in a competitive area within 120 
days. After considering the agency's comments, 5 CFR 351.605 is revised 
to provide that the liquidation provision is applicable when an agency 
will abolish all positions in a competitive area within 180 days (i.e., 
three times the basic RIF notice period of 60 days). The new 180 day 
standard for the liquidation provision will also provide the Department 
of Defense with needed flexibility in carrying out large scale closures 
in which a Defense activity must provide its employees with a minimum 
of 120 days RIF notice because of a significant RIF. An employee 
released from a competitive level under the liquidation provision found 
in 5 CFR 351.605 may still have assignment rights to a position in a 
different competitive level, as provided in subpart G of part 351.

RIF Notices

    On June 8, 1993, OPM published interim RIF notice regulations in 
the Federal Register at 58 FR 32047, effective upon publication with a 
60 day comment period. These regulations implement section 4433 of 
Public Law 102-484 (the National Defense Authorization Act for Fiscal 
Year 1993), which revised 5 U.S.C. 3502 by adding new sections (d) and 
(e) containing new notice requirements for RIF actions.
    OPM received five written comments on these interim regulations: 
Three from agencies and two from local offices of national unions.
    All three agencies favored the proposal. However, one agency 
requested that OPM expand 5 CFR 351.802(b) to affirm that an agency 
must provide an employee who receives a specific RIF notice with a copy 
of OPM's retention regulations, upon the employee's request. We have 
reviewed the proposed language and believe that 5 CFR 351.802(b) as 
written specifically covers this requirement.
    A second agency requested that OPM revise 5 CFR 351.803(b) to 
provide that the agency must meet special notice requirements only when 
50 or more employees are actually separated from a competitive area. In 
the interim regulations, 5 CFR 351.803(b) provides that an agency must 
provide additional notice when 50 or more employees in a competitive 
area receive specific RIF separation notices. The agency must send this 
additional notice of a large RIF to (1) the appropriate State 
dislocated worker unit under the Job Training Partnership Act, (2) the 
chief elected local government official where the separations will take 
place, and (3) OPM. We retained the language in 5 CFR 351.803(b) 
without revision because we believe that an employee who receives a 
specific notice of separation in a large RIF is entitled to the same 
benefits as an employee who is actually separated.
    The two union locals were concerned that OPM could approve a 
shortened RIF notice period that would be detrimental to their members. 
Both locals are in Department of Defense (DoD) activities. 5 CFR 
351.801(a)(2) provides that DoD components must provide their employees 
with a minimum of 120 days specific notice when a significant number of 
employees will be separated by RIF.
    5 U.S.C. 3502(e)(1) provides that the President of the United 
States may approve a RIF notice period of less than, as appropriate, 60 
or 120 days, based on unforeseeable circumstances. However, 5 U.S.C. 
3503(e)(3) provides that a shortened RIF notice period must always 
cover at least 30 days. E.O. 12828, approved on January 5, 1993 (58 FR 
2965), authorizes OPM to shorten the applicable mandatory 60 or 120 day 
specific written RIF notice requirement to a minimum of 30 days. 5 CFR 
351.801(b) implements E.O. 12828 and authorizes the Director of OPM to 
approve a shortened notice period at the request of an agency head or 
designee.
    We have adopted 5 CFR 351.801(b) without revision because OPM is 
limited by law and Executive Order in granting exceptions to the 
minimum RIF notice period.

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 5 CFR Part 351

    Government employees.

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

    Accordingly, OPM is adopting as final its interim and proposed 
rules published under 5 CFR part 351 on May 26, 1992, at 57 FR 21890 
(as corrected on June 27, 1994, at 59 FR 32871), on June 8, 1993, at 58 
FR 32047, and on May 27, 1994, at 59 FR 27509, with the following 
changes:

PART 351--REDUCTION IN FORCE

    1. The authority citation for part 351 is revised to read as 
follows:

    Authority: 5 U.S.C. 1302, 3502, 3503; S351.801 also issued under 
E.O. 12828, 58 FR 2965.

    2. Section 351.605 is revised to read as follows:


Sec. 351.605  Liquidation provisions.

    When an agency will abolish all positions in a competitive area 
within 180 days, it must release employees in group and subgroup order 
consistent with Sec. 351.601(a). At its discretion, the agency may 
release the employees in group order without regard to retention 
standing within a subgroup, except as provided in Sec. 351.606. When an 
agency releases an employee under this section, the notice to the 
employee must cite this authority and give the date the liquidation 
will be completed. An agency may also apply Secs. 351.607 and 351.608 
in a liquidation.
    3. In Sec. 351.608, paragraphs (c) and (d) are redesignated as 
paragraphs (d) and (e) respectively, paragraph (b) is revised, and 
paragraph (c) is added, to read as follows:


Sec. 351.608  Permissive temporary exceptions.

* * * * *
    (b) Exception not to exceed 90 days. An agency may make a temporary 
exception for not more than 90 days when needed to continue an activity 
without undue interruption.
    (c) Government obligation. An agency may make a temporary exception 
to satisfy a Government obligation to the retained employee.
* * * * *
    4. Subpart H, consisting of Secs. 351.801 through 351.806, is 
revised to read as follows:

Subpart H--Notice to Employee

Sec.
351.801  Notice period.
351.802  Content of notice.
351.803  Notice of eligibility for reemployment and other placement 
assistance.
351.804  Expiration of notice.
351.805  New notice required.
351.806  Status during notice period.
351.807  Certification of Expected Separation.

[[Page 2679]]

Subpart H--Notice to Employee


Sec. 351.801  Notice period.

    (a)(1) Except as provided in paragraph (b) of this section, each 
competing employee selected for release from a competitive level under 
this part is entitled to a specific written notice at least 60 full 
days before the effective date of release.
    (2) Under authority of section 4433 of Public Law 102-484, 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. This 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.
    (3) At the same time an agency issues a notice to an employee, it 
must give a written notice to the exclusive representative(s), as 
defined in 5 U.S.C. 7103(a)(16), of each affected employee at the time 
of the notice. When a significant number of employees will be 
separated, an agency must also satisfy the notice requirements of 
Secs. 351.803 (b) and (c).
    (b) When a reduction in force is caused by circumstances not 
reasonably foreseeable, the Director of OPM, at the request of an 
agency head or designee, may approve a notice period of less than 60 
days, or a notice period of less than 120 days when a significant 
number of Department of Defense employees will be separated. The 
shortened notice period must cover at least 30 full days before the 
effective date of release. An agency request to OPM shall specify:
    (1) The reduction in force to which the request pertains;
    (2) The number of days by which the agency requests that the period 
be shortened;
    (3) The reasons for the request; and
    (4) Any other additional information that OPM may specify.
    (c) The notice period begins the day after the employee receives 
the notice.
    (d) When an agency retains an employee under Sec. 351.607 or 
Sec. 351.608, the notice to the employee shall cite the date on which 
the retention period ends as the effective date of the employee's 
release from the competitive level.


Sec. 351.802  Content of notice.

    (a) The notice shall state specifically:
    (1) The action to be taken and its effective date;
    (2) The employee's competitive area, competitive level, subgroup, 
service date, and annual performance ratings of record received during 
the last 4 years;
    (3) The place where the employee may inspect the regulations and 
record pertinent to this case;
    (4) The reasons for retaining a lower-standing employee in the same 
competitive level under Sec. 351.607 or Sec. 351.608;
    (5) Information on reemployment rights, except as permitted by 
Sec. 351.803(a); and
    (6) The employee's right, as applicable, to appeal to the Merit 
Systems Protection Board under the provisions of the Board's 
regulations or to grieve under a negotiated grievance procedure. The 
agency shall also comply with Sec. 1201.21 of this title.
    (b) When an agency issues an employee a notice, the agency must, 
upon the employee's request, provide the employee with a copy of OPM's 
retention regulations found in part 351 of this chapter.


Sec. 351.803  Notice of eligibility for reemployment and other 
placement assistance.

    (a) An employee who receives a specific notice of separation under 
this part must be given information concerning the right to 
reemployment consideration under subparts B (Reemployment Priority 
List) and C (Displaced Employee Program) of part 330 of this chapter. 
The employee also must be given information concerning how to apply for 
unemployment insurance through his or her appropriate State program. 
This information must be provided either in or with the specific 
reduction in force notice, or as a supplemental notice to the employee.
    (b) When 50 or more employees in a competitive area receive 
separation notices under this part, the agency must provide written 
notification of the action, at the same time it issues specific notices 
of separation to employees, to:
    (1) The State dislocated worker unit(s), as designated or created 
under title III of the Job Training Partnership Act;
    (2) The chief elected official of local government(s) within which 
these separations will occur; and
    (3) OPM.
    (c) The notice required by paragraph (b) of this section must 
include:
    (1) The number of employees to be separated from the agency by 
reduction in force (broken down by geographic area or other basis 
specified by OPM);
    (2) The effective date of the separations; and
    (3) Any other information specified by OPM, including information 
needs identified from consultation between OPM and the Department of 
Labor to facilitate delivery of placement and related services.


Sec. 351.804  Expiration of notice.

    A notice expires except when followed by the action specified, or 
by an action less severe than specified, in the notice or in an 
amendment made to the notice before the agency takes the action. An 
agency may not take the action specified before the effective date in 
the notice. An action taken after the specific date in the notice shall 
not be ruled invalid for that reason except when it is challenged by a 
higher-standing employee in the competitive level who is reached out of 
order for reduction in force as a result of the action.


Sec. 351.805  New notice required.

    An employee is entitled to a written notice of, as appropriate, at 
least 60 or 120 full days if the agency decides to take an action more 
severe than first specified.


Sec. 351.806  Status during notice period.

    When possible, the agency shall retain the employee on active duty 
status during the notice period. When in an emergency the agency lacks 
work or funds for all or part of the notice period, it may place the 
employee on annual leave with or without his or her consent, or leave 
without pay with his or her consent, or in a nonpay status without his 
or her consent.


Sec. 351.807  Certification of Expected Separation.

    (a) For the purpose of enabling otherwise eligible employees to be 
considered for eligibility to participate in dislocated worker programs 
under the Job Training Partnership Act administered by the U.S. 
Department of Labor, an agency may issue a Certificate of Expected 
Separation to a competing employee who the agency believes, with a 
reasonable degree of certainty, will be separated from Federal 
employment by reduction in force procedures under this part. A 
certification may be issued up to 6 months prior to the effective date 
of the reduction in force.
    (b) This certification may be issued to a competing employee only 
when the agency determines:
    (1) There is a good likelihood the employee will be separated under 
this part;
    (2) Employment opportunities in the same or similar position in the 
local

[[Page 2680]]

commuting area are limited or nonexistent;
    (3) Placement opportunities within the employee's own or other 
Federal agencies in the local commuting area are limited or 
nonexistent; or
    (4) If eligible for optional retirement, the employee has not filed 
a retirement application or otherwise indicated in writing an intent to 
retire.
    (c) A certification is to be addressed to each individual eligible 
employee and must be signed by an appropriate agency official. A 
certification must contain the expected date of reduction in force, a 
statement that each factor in paragraph (b) of this section has been 
satisfied, and a description of Job Training Partnership Act programs, 
the Interagency Placement Program, and the Reemployment Priority List.
    (d) A certification may not be used to satisfy any of the notice 
requirements elsewhere in this subpart.
    (e) An agency determination of eligibility for certification may 
not be appealed to OPM or the Merit Systems Protection Board.
    (f) An agency may also enroll eligible employees in the Interagency 
Placement Program and the Reemployment Priority List up to 6 months in 
advance of a reduction in force. For requirements and criteria for 
these programs, see subparts B and C of part 330 of this chapter.

[FR Doc. 95-643 Filed 1-10-95; 8:45 am]
BILLING CODE 6325-01-M