[Federal Register Volume 60, Number 165 (Friday, August 25, 1995)]
[Rules and Regulations]
[Pages 44253-44254]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-21019]



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 Rules and Regulations
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  Federal Register / Vol. 60, No. 165 / Friday, August 25, 1995 / Rules 
and Regulations  


[[Page 44253]]


OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 351

RIN 3206-AG77


Reduction in Force Retreat Right

AGENCY: Office of Personnel Management.

ACTION: Interim rule with request for comments.

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SUMMARY: The Office of Personnel Management is issuing interim 
retention regulations that clarify existing policy on employees' 
``Retreat'' rights. These interim regulations also clarify existing 
policy concerning the content of specific written reduction in force 
notices, and issuance of a Certification of Separation.

DATES: These interim regulations are effective August 25, 1995. Written 
comments will be considered if received no later than October 24, 1995.

ADDRESSES: Send written comments to Leonard R. Klein, Associate 
Director for Employment Service, Office of Personnel Management, Room 
6F08, 1900 E Street, NW, Washington, DC 20415.

FOR FURTHER INFORMATION CONTACT: Thomas A. Glennon or Edward P. McHugh, 
202-606-0960, FAX 202-606-2329.

SUPPLEMENTARY INFORMATION:

Assignments Rights--General

    Reduction in force assignment rights are covered in subpart 351-G 
of title 5, Code of Federal Regulations. A competing employee in 
retention tenure Groups I and II with current performance ratings of at 
least ``Minimally Successful'' who has been released from a competitive 
level is entitled to an offer of assignment under the ``retention 
regulations if the employee has ``Bumping'' or ``Retreating'' rights to 
an available position in the same competitive area. The available 
position must be within three grades or grade-intervals (or equivalent) 
of the employee's present position. However, an employee who is 
eligible for veterans' preference under the retention regulations, and 
who has a service-connected disability of 30 percent or more, has a 
retreat right to positions up to five grades or grade-intervals (or 
equivalent) of the employee's present position.

Assignment Rights--Bumping

    5 CFR 351.701(b) covers employee ``Bump'' rights. ``Bumping'' means 
displacing an employee in a lower tenure group, or in a lower subgroup 
within the released employee's own tenure group. Although the released 
employee must be qualified for the position, it may be a position that 
the employee has never held.

Assignment Rights--Retreating

    5 CFR 351.701 (c) and (d) cover ``Retreat'' rights. ``Retreating'' 
means displacing an employee with less service within the released 
employees own tenure group and subgroup (i.e., a limited form of 
bumping within the same retention group and subgroup). 5 CFR 
351.701(c)(3) provides that the position must also be the same position 
or essentially identical to a position held by the released employee in 
a Federal agency.
    An employee with a current annual performance rating of ``Minimally 
Successful'' has retreat rights only to a position held by an employee 
with the same or a lower rating.
    5 CFR 351.701(c)(3) is revised to provide that, for purposes of 
determining an employee's retreat rights, a position is considered 
essentially identical to one previously held (1) if the employee held 
the previous position on a permanent basis, and (2) the agency 
determines on the basis of available information that the two positions 
are otherwise interchangeable under the competitive level criteria 
found in section 5 CFR 351.403, but without regard to the respective 
grade, classification series, type of work schedule, or type of 
service, of the two positions. In short, an employee has the right to 
retreat if the employee's former position and a position held by a 
lower-standing employee are interchangeable under the competitive level 
standard found in 5 CFR 351.403 on the basis of the duties, 
responsibilities, and qualification, even if the two positions differ 
in regard to grade, classification series, type of work schedule, or 
type of service.

Examples

    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-
343-11 employee would have a right to retreat to a GS-343-7 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 

[[Page 44254]]
GS-334-7 position are otherwise essentially identical using the 
competitive level test found in 5 CFR 351.403.

Reduction in Force Notices

    5 U.S.C. 3502(d)(1) provides that an agency must give each employee 
a minimum of 60 days specific written notice before effecting a 
reduction in force action. Pub. L. 102-484 provided that each employee 
of the Department of Defense is entitled to a minimum of 120 days 
specific written notice when a significant number of employees will be 
separated during the period from January 20, 1993, through January 31, 
1998.
    Section 911(a) of Pub. L. 103-337 extended the window period for 
the 120 days specific written notice applicable to the Department of 
Defense to cover the period from January 20, 1993, through January 31, 
2000. 5 CFR 351.801(a)(2) is revised to include this statutory change.
    5 U.S.C. 3502(d)(2)(A) provides that an agency must cover in a 
specific reduction in force notice the personnel action that is being 
taken. 5 CFR 351.802(a)(1) is revised to provide 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.

Certification of Expected Separation

    5 CFR 351.807 provides that an agency may issue a Certification of 
Expected Separation to employees likely to be separated by reduction in 
force within 6 months. 5 CFR 351.807(b) covers the conditions under 
which an agency may issue a Certification. In final regulations 
published on January 11, 1995, at 60 FR 2677, the word ``or'' 
inadvertently followed 5 CFR 351.807(b)(3) rather than the word 
``and,'' which was used in interim regulations published on June 27, 
1994, at 59 FR 32873. 5 CFR 351.807 is revised to provide that ``and'' 
again follows 5 CFR 351.807(b)(3), consistent with the interim 
regulations.

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. Also, 
pursuant to 5 U.S.C. 553(d)(3), I find that food cause exists to make 
this amendment effective in less than 30 days. The delay in the 
effective date is being waived to clarify OPM's retention regulations 
as agencies undertake potential downsizing actions and to give effect 
to the benefits extended by the amended provisions 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.
List of Subjects in 5 CFR Part 351

    Administrative practice and procedure, Government employees.

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

    Accordingly, OPM is amending 5 CFR part 351 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, 
held by the released employee on a permanent basis in a Federal agency. 
(In determining whether a position is essentially identical, the 
determination is based on the competitive level criteria found in 5 CFR 
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 911(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:


Sec. 351.802  Content of notice.

    (a)(1) The action to be taken, the reasons for the action, and its 
effective date;
* * * * *
    5. In Sec. 351.807, paragraph (b)(3) is revised to read as follows:


Sec. 351.807  Certification of expected separation.

* * * * *
    (b) * * *
    (3) Placement opportunities within the employee's own or other 
Federal agencies in the local commuting area are limited or 
nonexistent; and
* * * * *
[FR Doc. 95-21019 Filed 8-24-95; 8:45 am]
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