[Federal Register Volume 62, Number 23 (Tuesday, February 4, 1997)]
[Proposed Rules]
[Pages 5174-5183]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-2686]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 62, No. 23 / Tuesday, February 4, 1997 /
Proposed Rules
[[Page 5174]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Parts 293, 351, 430, and 531
RIN 3206-AH32
Reduction in Force and Performance Management
AGENCY: Office of Personnel Management.
ACTION: Proposed rulemaking.
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SUMMARY: The Office of Personnel Management (OPM) is proposing
regulations that enhance the opportunity for Federal employees to
receive retention service credit during reductions in force based on
their actual job performance. The proposal also gives agencies with
employees who have been rated under different patterns of summary
rating levels a mechanism to take this into account when awarding
employees additional retention service credit for reduction in force.
These proposed regulations also clarifying certain other retention
rights, including the coverage of employees serving under term
appointments.
DATES: Comments must be received by April 7, 1997.
ADDRESSES: Send or deliver written comments to: Mary Lou Lindholm,
Associate Director for Employment Service, Room 6F08, Office of
Personnel Management, Washington, DC 20415.
FOR FURTHER INFORMATION CONTACT: Thomas A. Glennon, Jacqueline Yeatman,
or Edward P. McHugh (part 351); (202) 606-0960, FAX (202) 606-2329; or
Barbara Colchao or Doris Hausser (parts 293, 430 and 531); (202) 606-
2720, FAX (202) 606-2395.
SUPPLEMENTARY INFORMATION:
(1) Performance
Crediting Performance in Reductions in Force
Background to Proposed Regulations
Employee performance is one of four factors specified in 5 U.S.C.
3502(a), and regulations in 5 CFR part 351, that determine an
employee's retention standing during reductions in force. The other
three factors are tenure of appointment, veterans' preference and
length of service. Traditionally, performance has been recognized in
the reduction in force process by providing employees with additional
years of retention service credit based on the average of their three
most recent ratings of record received under the provisions of 5 CFR
part 430, subpart B, during the 4 years prior to the reduction in
force.
These proposed changes enhance the opportunity for Federal
employees to receive retention credit during reductions in force based
on their job performance. They do not, however, change the relative
importance of performance vis a vis the other retention factors:
tenure, veterans' preference and length of service. Further, they
retain the present range of additional retention service credit that is
provided to good performers during reductions in force (i.e., 12 to 20
years additional retention service credit) and the requirement that
additional retention service credit be awarded based on the average of
the three most recent ratings of record whenever possible.
Current regulations at section 351.504(d) define the specific
amount of additional retention service credit awarded for each rating
level and require that it be applied in the same way by each agency
subject to the reduction in force regulations. Twenty years of
additional retention service credit is specified for a Level 5 rating
of record (i.e., ``Outstanding'' or equivalent), 16 years of additional
retention service credit for a Level 4 rating of record (i.e.,
``Exceeds Fully Successful'' or equivalent), and 12 years of additional
retention service credit for a Level 3 rating of record (i.e., ``Fully
Successful'' or equivalent). No additional retention service credit is
provided for a Level 2 rating of record (i.e., ``Minimally Successful''
or equivalent) or for a Level 1 rating of record (i.e.,
``Unacceptable.'').
Currently credit is provided on the basis of the three most recent
ratings of record received during the 4 years prior to the reduction in
force. The sum of the three most recent ratings is divided by three and
rounded to a whole number. For example, an employee whose three most
recent ratings are ``Exceeds Fully Successful'' (16), Exceeds Fully
Successful (16), and Outstanding (20) is given 18 years extra seniority
(16+16+20 = 52/3 = 17.3 = 18). If employees have received fewer than
three actual ratings in the last 4 years, agencies are required to
substitute an assumed rating of Fully Successful for each missing
rating.
New Procedures for Increasing Use of Actual Ratings in RIF
Extending time period during which ratings are considered. One
element of the proposal addresses the circumstance where employees have
not received three actual ratings of record in the last 4 years. They
may have received two ratings, or one, or none. This could occur due to
a variety of circumstances; for example: Employees on extended
assignments on military reserve duty; employees on official time under
chapter 71 of title 5, United States Code; employees new to Government
service; or employees who have been absent due to an on-the-job injury.
To minimize the use of assumed ratings and to maximize the extent to
which additional retention service credit is based on actual job
performance, OPM is proposing to lengthen the period of time from which
ratings are taken into account from 4 years to 6 years prior to the
reduction in force. For example, if an employee has been given two
ratings of record during the previous 4 years, a rating given in the
fifth year prior to the reduction in force may be taken into account in
order to use three actual ratings. In all cases, however, the three
most recent ratings of record must be used. OPM is proposing
appropriate changes to the recordkeeping requirements in 5 CFR part
293. This change in the time period for crediting performance ratings
will be phased in to allow agencies time to change their recordkeeping
procedures. The implementation schedule for this provision is explained
in the paragraph below on ``Special implementation/effective dates.''
New computation methods for crediting performance in reduction in
force. OPM is also proposing to remove the requirement to fill in
missing ratings of record with assumed Fully Successful ratings when an
employee has received only one or two actual ratings of record during
the 6-year period when ratings can be credited. Under the proposed
change, the actual rating(s) of record available will serve as the sole
basis of
[[Page 5175]]
the employee's credit, and no assumed ratings will be used.
Consequently, if an employee has received only two actual ratings of
record during this period, the value of each rating will be added
together and divided by two to determine the amount of additional
retention service credit. If the employee has received only one actual
rating during the period, it will be divided by one to determine
additional retention service credit. The same computation method
(dividing the rating value by one) will be used when crediting an
assumed rating when the value is determined under the procedures
outlined below.
Crediting performance for employees with no actual ratings. Only in
the unusual situation where an employee has no actual rating of record
in a 6-year period will an assumed rating be used. The value of that
assumed rating will be determined on the basis of two factors: (1) The
summary level pattern that applies to the employee's official position
of record at the time of the reduction in force; and (2) the amount of
current continuous service the employee has.
Employees who have no ratings and have more than one year of
current continuous service. An employee who has completed at least one
year of current continuous service at the time that reduction in force
notices are issued (or by the cutoff date the agency specifies prior to
the issuance of RIF notices after which no new annual ratings are put
on record) will be given the additional retention service credit for
the most common, or ``modal'', summary rating level, as defined in 5
CFR 351.203, for the summary level pattern that applies to the
employee's position at the time of the reduction in force. The agency
may determine the modal rating using summary ratings in the competitive
area, in a larger subdivision of the agency, or agencywide. The
applicable modal rating(s) must be applied uniformly and consistently
within the competitive area.
For example, if the employee's position would be covered under a
five-level rating pattern, the agency would compile the summary ratings
on record for the most recently completed appraisal period that were
given to employees in the competitive area, subdivision or agency who
were rated under a five-level rating pattern. If the results were: 78
Outstanding, 153 Exceeds Fully Successful, 129 Fully Successful, 42
Marginal, and 7 Unacceptable, then the modal rating in this instance
would be Exceeds Fully Successful. In this example, the assumed rating
for an employee with no rating in the past 6 years, who has at least
one year of current continuous service, and whose position is under a
five-level program, would be Level 4. This employee would be given
additional retention service credit based on a Level 4 rating.
If, using the same process, the most commonly given rating for
employees under a four-level summary rating pattern was determined to
be a Level 3 rating, this would be the modal rating used for employees
covered by this pattern.
Employees without ratings who have less than one year of current
continuous service: The modal rating is not used for employees who have
completed less than one year of current continuous service. Additional
retention service credit is given based on a Level 3 (Fully Successful
or equivalent) rating of record under the summary level pattern which
applies to the employee's position at the time of reduction in force.
Awarding Retention Service Credit When Employees in the Same RIF
Competitive Area Have Been Rated Under More Than One Pattern of Summary
Rating Levels
On August 23, 1995, OPM issued final regulations, at 60 FR 43936,
giving agencies the option to determine the pattern of summary rating
levels under their performance appraisal programs. There are eight
possible patterns ranging from a traditional five-level program to a
two-level program that uses only Level 1 and Level 3. Agencies can
design their appraisal systems to permit the use of different patterns
in different organizations and can change the patterns used without
prior OPM approval.
This flexibility in the design of performance appraisal programs
can affect employees' relative retention standing for reduction in
force. Employees compete for retention within a competitive area. It is
possible for a competitive area to cover two or more organizations that
each use a different pattern of summary rating levels. Also, employees
may have been transferred or reassigned into the competitive area from
other agencies with different rating patterns. Some employees may have
ratings of record from two-level appraisal programs, while others have
ratings under five-level programs.
During the comment period on the performance management
regulations, agencies asked for flexibility in awarding additional
retention service credit when conducting reductions in force when
competitive areas include employees rated under different patterns of
summary levels. In the final performance management regulations
published on August 23, 1995, OPM stated that it would review the
existing reduction in force regulations in 5 CFR part 351 and consider
whether any changes should be made to address mixed pattern situations.
These proposed regulations are a result of that review.
OPM considered the consequences that could occur as a result of
agencies making maximum use of performance management flexibilities,
resulting in competitive areas that include employees with ratings
given under different patterns. OPM concluded that to credit actual
performance more appropriately when conducting retention competition
among employees rated under different patterns, agencies need
flexibility to adjust the credit assigned to rating levels in their
patterns. The proposed regulations revise 5 CFR 351.504 to require an
agency to take into account different patterns of summary rating levels
when awarding employees additional retention service credit in
reduction in force competition based on their performance.
New agency authority to determine retention service credit. Under
the proposed regulations, an agency with employees in a RIF competitive
area who have been rated under different patterns of summary rating
levels must decide how many years of retention service credit within
the allowable range of 12 to 20 years to assign to particular summary
rating levels. OPM has determined that too many potential combinations
of rating patterns within a competitive area will occur in the future
to mandate any particular crediting formula. The objective of applying
flexibility should be to give, to the extent possible, the same credit
for equivalent performance. The appropriate solution will of necessity
be specific to the RIF competitive area as the agency takes into
account the combination of rating patterns used and the relative
numbers of employees rated under each pattern.
For example, one RIF competitive area is composed of 200 employees,
each with three actual ratings of record. Of those employees, 180 have
been rated under a five-level performance appraisal program. Of their
ratings, 2 percent were below Fully Successful, 20 percent were Fully
Successful, 53 percent were Exceeds Fully Successful, and 25 percent
were Outstanding. The other 20 employees were rated under a two-level
(pass/fail) program, with 98
[[Page 5176]]
percent of their ratings at Level 3 (Pass or Fully Successful).
Under the current regulations, all the Fully Successful ratings of
record would receive 12 years of additional retention service credit,
Exceeds Fully Successful ratings would receive 16 years credit, and
Outstanding ratings would receive 20 years credit. Employees in the
two-level system never had the opportunity to be rated and receive
credit for performing above the Fully Successful level, even though
their performance might well have been rated Exceeds Fully Successful,
or even Outstanding, under a five-level program.
Under the proposed regulations, the agency may decide, for example,
that to credit performance more appropriately, the Fully Successful
ratings of record given under the two-level program should receive the
same number of years additional credit as the Exceeds Fully Successful
ratings given under the five-level program, because the record
indicates that 78 percent of ratings given under a five-level program
are above Fully Successful and most of those are Exceed Fully
Successful. Under this scenario, the agency might use the flexibility
to assign credit based on a mix of rating level patterns within the RIF
competitive area to provide what the agency determined to be equivalent
credit for similar performance.
If an agency has RIF competitive areas in which all employee
ratings of records to be credited were given under the same pattern of
summary levels, it is required to follow the current regulations for
crediting performance in a reduction in force which now appear in
paragraph (d) of section 351.504.
Uniform and consistent treatment of employees in the same RIF
competitive area. In using the proposed regulations, the agency's
application must be uniform and consistent within the RIF competitive
area. For example, each employee covered by a two-level program within
the competitive area must receive the same amount of additional
retention service credit for their Level 3 rating of record. Under
proposed paragraph (f) of section 351.504, the agency must establish
its performance crediting procedures for the applicable reduction in
force and must keep the procedures available for review. The agency is
not required, however, to apply the same performance crediting
procedures in different competitive areas, or in different reductions
in force.
The proposed regulations are specific to the agency conducting the
reduction in force, at the time it carries out the reduction in force
action. Thus an agency carrying out a reduction in force may provide
different amounts of additional retention service credit for ratings of
record received in an employee's former agency than were provided by
that former organization.
The proposed regulations also include conforming changes that have
been made throughout section 351.504 to make consistent the various
references to rating of record and the summary levels. In addition, the
exceptions to a current rating of record that are presently in
paragraph (e) of section 351.504 are removed and the new definition of
``Current Rating'' in section 351.203 clarifies what the current rating
of record is.
Additional Retention Service Credit for Certain Ratings From Appraisal
Systems Not Covered by the Provisions of 5 CFR Part 430
Employees in a competitive area may have been rated under an
appraisal system not established under the provisions of 5 CFR part
430. OPM is proposing language in the revised section 351.504 that will
require agencies to use all ratings of record given to employees for
assigning additional retention service credit during a reduction in
force. However, a performance evaluation given to an employee under an
appraisal system not covered by the provisions of 5 CFR part 430,
subpart B, would be considered a rating of record only if it meets the
conditions specified in the new paragraph (c) of section 430.201 of the
proposed regulations. The agency conducting the reduction in force will
make the determination of whether or not such ``non-430'' performance
ratings meet the specified conditions.
Related Conforming Amendments
At section 430.201, General, OPM is proposing a new paragraph,
Equivalent ratings of record, to specify the conditions which must be
met before performance evaluations given under evaluation systems not
covered by 5 U.S.C. 43 and 5 CFR 430, subpart B, can be used as the
basis for granting additional retention service credit in a reduction
in force. These conditions in part address fundamental requirements
comparable to those in statute, such as communicating performance
standards in advance and evaluating work performance against those
standards. In some situations, the agency may need to take the step of
identifying a summary level and pattern based on available information.
OPM expects that some ``non-430'' performance evaluations will not meet
one or more of the specified conditions.
At section 430.208, Rating performance, OPM is proposing amendments
and additional language to support the use of additional flexibility
for crediting performance in a reduction in force, as proposed here in
section 351.504. Regulatory language is added to section 430.208,
Rating performance, to include in paragraphs (d)(2) and (d)(4)
designation of the summary level pattern as an integral part of a
rating of record, and to establish in paragraph (d)(5) an authority to
permit, but not require, assigning the same rating of record a
different number of years additional retention service credit in a
different summary level pattern, competitive area, or reduction in
force. To conform with these changes, OPM is also revising the
definitions of performance rating and rating of record regarding a
summary level within a pattern in section 430.203.
Technical Amendments
OPM is proposing to add regulatory language in the recently issued
regulations on performance appraisal systems and programs. In two
places, the additions are being made solely to clarify and state
explicitly restrictions on the use of critical and noncritical elements
that are implicit in the existing regulations. Other clarifying changes
are being made regarding the appraisal period and a delay of an
acceptable level of competence determination.
Critical Element Definition
In the first instance, OPM proposes to amend the definition in
section 430.203 of a critical element to clarify that critical elements
may be used to measure performance only at the individual level. A
corresponding editorial change is proposed at section 430.206(b)(4) for
the description of elements contained in an employee's performance
plan. These represent no substantive change in the regulations because
of the statutory definition of a critical element. The statutory intent
of chapter 43 is to establish and maintain individual accountability.
At section 4303, the chapter includes a provision for removing an
employee who fails to meet the established performance standard for one
or more critical elements. A critical element that measures performance
where individual contributions and control are not identifiable would
be unusable as a basis for taking such a performance-based action
because we conclude that individual control over the performance that
meets the standard is a necessary condition for applying the standard
and taking that action.
[[Page 5177]]
Using a group-level critical element raises the implications of the
group or team failing to meet the element's established standards and
being deemed, by statutory definition, Unacceptable on the element. The
agency would be obligated to carry out the notification and assistance
provisions of 5 CFR 432.104, Addressing unacceptable performance, for
each member of the group or team, irrespective of the caliber of his or
her individual performance. Also, should the timing of an appraisal
period coincide with the end of their waiting periods, group members
would be denied within-grade pay increases or career ladder promotions,
once again without reference to their personal performance. We do not
believe that this is in accord with the intent of the statute.
Barring Non-Critical Elements When Only Two Summary Levels Are Used
In the second instance, OPM proposes to add explicit regulatory
language in section 430.206(b)(6) prohibiting the use of non-critical
elements in employee performance plans in ``Pass/Fail'' summary
appraisal situations, and thereby prevent confusion and inappropriate
use of non-critical elements in appraisal programs. Adding this
language is not a substantive change because it merely states a
condition that is the logical consequence of applying other definitions
and restrictions already included in the regulations.
This logical conclusion operates with an appraisal program that
uses only two summary levels, Level 1 (Unacceptable) and Level 3 (Fully
Successful or equivalent), which is commonly referred to as a ``Pass/
Fail'' program. The relevant definitions and restrictions are: (1) the
definition at section 430.203 of a non-critical element, which includes
the requirement that it must affect the summary level; and (2) the
provisions at section 430.208(b) (1) and (2), which make it clear that
a non-critical element cannot have the effect of summarizing
performance as ``Unacceptable.''
In an appraisal program that uses only two summary levels, if an
employee's performance on any or all elements not designated as
critical was appraised as Unacceptable, but performance on all critical
elements was appraised as better than Unacceptable, then the assigned
summary level would have to be Level 3. Level 1 cannot be used because
no critical element performance was Unacceptable. The only summary
level available other than Level 1 is Level 3. This illustrates that
under a two-level program, the summary level can only be affected by
critical elements. Of course, additional elements could still be
included in the employee's performance plan if it was not appropriate
to designate them as critical elements (e.g., they measure performance
at the team or organizational level).
Appraisal Period
In section 430.206(a)(2), a change is being made to clarify that
each appraisal program can designate only one appraisal period. The
change reflects OPM's ongoing position that the appraisal period chosen
for the program affects the application of all the program's other
provisions and is one of the key features that distinguishes one
program from another. The other two distinguishing features are
employee coverage and pattern of summary levels for ratings of record.
The appraisal period is a specified period of time (e.g., 12
months). Within a single program, agencies are free to start the
appraisal period on different dates for different employees or groups
of employees.
Delay of an Acceptable Level of Competence Determination
OPM also is proposing technical amendments to 5 CFR 531.409(c) to
eliminate any unintended confusion regarding the delay of an acceptable
level of competence determination (ALOC) and to make terminology
consistent with the performance management regulations. The first
change incorporates into regulation OPM's longstanding interpretation
of the present regulation, thus clarifying that the two circumstances
described in the regulations are the only ones under which the ALOC
determination is delayed. A corresponding change is being made to the
definition of rating of record in section 430.203 to clarify that a
rating of record done to comply with 5 CFR 531.404(a)(1) is a bona fide
rating of record for all purposes. In addition, other changes are made
to bring the terminology used into conformance with the recent changes
in the performance management regulations.
(2) Definitions
``Annual Performance Rating of Record.'' Performance is one of the
four factors agencies use to determine an employee's retention rights.
(The other three factors are Tenure, Veterans' Preference, and
Service.)
Consistent with final performance regulations published in the
Federal Register at 60 FR 43936, August 23, 1995, proposed section
351.203 removes the definition of ``Annual Performance Rating of
Record'' and adds the definition of ``Rating of Record'' consistent
with the meaning given that term in section 430.203 of this chapter.
The new definition also introduces equivalent ratings of record.
(3) Competitive Area
Agencies establish ``Competitive Areas'' to set the organizational
and geographical boundaries within which employees compete for
retention. Proposed section 351.402(b) clarifies existing policy on
OPM's minimum standard for a competitive area. This regulatory change
maintains the same standard for a minimum competitive area, but
reflects current organizational structure and terminology in lieu of
existing language.
(4) Competitive Level
Agencies establish ``Competitive Levels'' to group interchangeable
positions in the process of determining employees' retention rights.
Proposed section 351.403(c) is added to clarify existing policy that an
agency may not establish a competitive level based solely upon: (1) A
difference in the number of hours or weeks scheduled to be worked by
other-than-full-time employees who would otherwise be in the same
competitive level; (2) a requirement to work changing shifts; (3) the
grade promotion potential of the position; or (4) a difference in the
local wage areas in which wage grade positions are located.
(5) Retention Register
Proposed section 351.404(a) clarifies existing policy that upon
displacing another employee under this section, an employee retains the
same status and tenure in the new position.
Proposed section 351.404(b)(2) provides that the name of each
employee in the competitive level with a written decision of removal
under part 432 or 752 of this chapter is listed at the bottom of the
retention register. Under present section 351.404(b)(2), the name of
each employee in the competitive level with a written decision of
removal because of ``Unacceptable'' or equivalent performance under
part 432 is listed at the bottom of the retention register.
Proposed section 351.405 provides that the name of each employee in
the competitive level with a written decision of demotion under part
432 or 752 of this chapter competes for retention from the position to
which the employee will be or has been demoted. Under present section
351.405, the name of each employee in the competitive level with a
written decision of demotion under part 432
[[Page 5178]]
because of ``Unacceptable'' or equivalent performance competes for
retention from the position to which the employee will be or has been
demoted.
(6) Retention Subgroups
Retention Groups and Subgroups include two of the factors (i.e.,
Tenure and Veterans' Preference) that are used to determine an
employee's retention standing. Proposed section 351.501(b)(3) is
revised to clarify existing policy that employees serving under Term
appointments are included in retention subgroup III.
(7) Release From Competitive Level
Proposed section 351.602 provides that an agency may not release a
competing employee from a competitive level while still retaining in
that competitive level another employee who has received a written
notice of demotion or removal under either part 432 or 752.
(8) Assignment Rights
Proposed section 351.701(f) is added to clarify existing policy on
the procedures agencies use to determine the appropriate grade or
grade-interval basis for setting employees' assignment rights.
Excepted service employees have no right of assignment to a
position in a different competitive level. Section 351.705(a)(3)
provides that, at its discretion, an agency may offer assignment rights
to its excepted service employees. Proposed section 351.705(a)(3)
clarifies existing policy that an excepted service employee may have a
right of assignment on the same basis (i.e., ``Bump'' and ``Retreat'')
as provided to competitive service employees, and only to another
excepted service position under the same appointing authority.
(9) RIF Notices
Section 351.504(b)(1) provides that an employee is entitled to
additional retention service credit based upon the employee's three
most recent ratings of record during the applicable 4-, 5-, 6-year
period prior to, as appropriate, the date the agency issues specific
reduction in force notices or the date the agency freezes ratings
before issuing reduction in force notices.
Section 351.802(a)(2) presently provides that an employee's
reduction in force notice must identify the employee's annual
performance ratings of record received during the last 4 years.
Proposed section 351.802(a)(2) provides that the agency must identify
the employee's three most recent ratings of record, rather than all
ratings of record received in the applicable 4-, 5-, 6-year
period, since only the three most recent ratings of record are used to
determine the employee's retention standing.
Proposed section 351.803(a) is revised to add a requirement that
each employee who receives a specific notice of separation by reduction
in force must be given an estimate of severance pay if eligible, and
information on benefits available under new subparts F and G (Career
Transition Assistance Programs) of part 330 of this chapter and from
the applicable State dislocated worker unit(s), as designated or
created under title III of the Job Training Partnership Act. To
increase placement opportunities for employees affected by downsizing,
the proposed section also provides that agencies must give employees
receiving a reduction in force separation notice a form to authorize,
at their option, the release of their resumes for employment referral
to State Dislocated Worker units and potential public and private
sector employers.
Proposed section 351.804 clarifies existing policy on when a
specific reduction in force notice expires.
Proposed section 351.805 clarifies existing policy on when an
agency is required to issue a new or amended specific reduction in
force notice.
Special Implementation/Effective Dates for New Reduction in Force/
Performance Credit Provisions
Except as noted below, it is OPM's intention to make the provisions
of these proposed regulations effective 30 days after the publication
of final regulations. In order to give agencies adequate lead time to
implement some of the procedural changes outlined in these regulations,
certain provisions will be implemented as follows:
(a) When implementing proposed section 351.504(b), which extends
the time period during which ratings are considered, agencies would
have the option to immediately begin using a 5- or 6-year period for
consideration of the employee's three most recent ratings. The 5-year
period would become mandatory in reductions in force for which notices
are issued or performance ratings are frozen on or after October 1,
1998. The 6-year period would become mandatory on October 1, 1999.
(b) The new agency authority to determine retention service credit
when employees in a competitive area are rated under multiple rating
patterns described in section 351.504(e) would apply only to ratings of
record that are put on record, as defined in paragraph (b)(3) of
section 351.504, on or after October 1, 1997. The agency credits any
ratings of record put on record on or before September 30, 1997, based
on the governmentwide 12-, 16-, and 20-year formula for additional
retention service credit currently in effect.
(c) Section 351.504(c)(1)(i), in which a modal rating is used as an
assumed rating for an employee with no actual ratings, would become
effective October 1, 1997. Until that date, agencies would apply the
provisions of section 451.504(c)(1)(ii) to employees who have no actual
ratings.
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.
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
CFR Part 293
Archives and records, Freedom of information, Government employees,
Health records, Privacy.
CFR Part 351
Administrative practice and procedure, Government employees.
CFR Part 430
Decorations, medals, awards, Government employees.
CFR Part 531
Government employees, Law enforcement officers, Wages.
U.S. Office of Personnel Management.
James B. King,
Director.
Accordingly, OPM proposes to amend parts 293, 351, 430, and 531 of
title 5, Code of Federal Regulations, as follows:
PART 293--PERSONNEL RECORDS
1. The authority citation for part 293 continues to read as
follows:
Authority: 5 U.S.C. 552 and 4315; E.O. 12107 (December 28,
1978), 3 CFR 1954-1958 Comp.; 5 U.S.C. 1103, 1104, and 1302; 5 CFR
7.2; E.O. 9830; 3 CFR 1943-1948 Comp.; 5 U.S.C. 2951(2) and 3301;
and E.O. 12107.
2. In Sec. 293.404, paragraph (a)(1) is revised to read as follows:
Sec. 293.404 Retention schedule.
(a)(1) Except as provided in Sec. 293.405(a), performance ratings
or documents supporting them are generally records and shall, except
for
[[Page 5179]]
appointees to the SES and including incumbents of executive positions
not covered by SES, be retained as prescribed as follows:
(i) Agencies shall retain the three (3) most recent ratings of
record issued to the employee in the past: 4 years through September
30, 1998; 5 years from October 1, 1998, through September 30, 1999; and
6 years beginning October 1, 1999;
(ii) Supporting documents shall be retained for as long as the
agency deems appropriate, but not to exceed 6 years;
(iii) Performance records superseded (e.g., through an
administrative or judicial procedure) and performance-related records
pertaining to a former employee (except as prescribed in
Sec. 293.405(a)) need not be retained for a minimum of 6 years. Rather,
in the former case they are to be destroyed and in the latter case
agencies shall retain in accordance with General Records Schedule 1;
and
(iv) Except where prohibited by law, retention of automated records
longer than the maximum prescribed in this section is permitted for
purposes of statistical analysis so long as the data are not used in
any action affecting the employee when the manual record has been or
should have been destroyed.
* * * * *
3. In section 293.405, paragraph (a) is revised to read as follows:
Sec. 293.405 Disposition of records.
(a) When the OPF of a non-SES employee is sent to another servicing
office in the employing agency, to another agency, or to the National
Personnel Records Center, the ``losing'' servicing office shall include
in the OPF information for the three (3) most recent ratings of record
issued to the employee that are 4 years old or less through September
30, 1998, (5 years old or less from October 1, 1998, through September
30, 1999, and 6 years old or less beginning October 1, 1999). The
information included shall be the summary pattern within which the
rating of record was assigned, the summary level assigned, the date the
rating was put on record for reduction in force purposes, and the
ending date of the appraisal period. Also, the ``losing'' office will
purge from the OPF all rating of record information that is more than 4
years old (more than 5 years old from October 1, 1998, through
September 30, 1999, and more than 6 years old beginning October 1,
1999), and other performance-related records, according to agency
policy established under Sec. 293.404(a)(2) and in accordance with OPM
Operating Manual, ``The Guide to Personnel Recordkeeping.''
PART 351--REDUCTION IN FORCE
4. The authority citation for part 351 continues to read as
follows:
Authority: 5 U.S.C. 1302, 3502, 3503.
5. In Sec. 351.203, the definition of ``Annual Performance rating
of record`` is removed, and the definitions of Current rating of
record, Modal rating, and Rating of record are added in alphabetical
order, to read as follows:
Sec. 351.203 Definitions.
* * * * *
Current rating is the rating of record for the most recently
completed appraisal period as provided in Sec. 351.504(b)(3).
* * * * *
Modal rating is the summary rating level assigned most frequently
among the actual ratings of record that are:
(1) Assigned under the summary level pattern that applies to the
employee's position of record on the date of the reduction in force;
(2) Given within the same competitive area, or at the agency's
option within a larger subdivision of the agency or agencywide; and
(3) On record for the most recently completed appraisal period
prior to the date of issuance of reduction in force notices or the
cutoff date the agency specifies prior to the issuance of reduction in
force notices after which no new ratings will be put on record.
Rating of record has the meaning given that term in Sec. 430.203 of
this chapter. For an agency not subject to 5 U.S.C. 43, or part 430 of
this chapter, it means the officially designated performance rating, as
provided for in the agency's appraisal system, that is considered to be
an equivalent rating of record under the provisions of Sec. 430.201(c)
of this chapter.
* * * * *
7. In Sec. 351.402, paragraph (b) is revised to read as follows:
Sec. 351.402 Competitive area.
* * * * *
(b) A competitive area must be defined solely in terms of the
agency's organizational unit(s) and geographical location, and it must
include all employees within the competitive area so defined. A
competitive area may consist of all or part of an agency. The minimum
competitive area is a subdivision of the agency under separate
administration within the local commuting area.
* * * * *
8. In Sec. 351.403, paragraph (c) is added to read as follows:
Sec. 351.403 Competitive level.
* * * * *
(c) An agency may not establish a competitive level based solely
upon:
(1) A difference in the number of hours or weeks scheduled to be
worked by other-than-full-time employees who would otherwise be in the
same competitive level;
(2) A requirement to work changing shifts;
(3) The grade promotion potential of the position; or
(4) A difference in the local wage areas in which wage grade
positions are located.
9. In Sec. 351.404, paragraph (a) introductory text, and paragraph
(b)(2), are revised to read as follows:
Sec. 351.404 Retention register.
(a) When a competing employee is to be released from a competitive
level under this part, the agency shall establish a separate retention
register for that competitive level. The retention register is prepared
from the current retention records of employees. Upon displacing
another employee under this part, an employee retains the same status
and tenure in the new position. Except for an employee on military duty
with a restoration right, the agency shall enter on the retention
register, in the order of retention standing, the name of each
competing employee who is:
* * * * *
(b) * * *
(2) The agency shall list, at the bottom of the list prepared under
paragraph (b)(1) of this section, the name of each employee in the
competitive level with a written decision of removal under part 432 or
752 of this chapter.
10. Section 351.405 is revised to read as follows:
Sec. 351.405 Demoted employees.
An employee who has received a written decision under part 432 or
752 of this chapter to demote him or her competes under this part from
the position to which he or she will be or has been demoted.
11. In Sec. 351.501, paragraph (b)(3) is revised to read as
follows:
Sec. 351.501 Order of retention--competitive service.
* * * * *
(b) * * *
(3) Group III includes all employees serving under indefinite
appointments, temporary appointments pending establishment of a
register, status quo appointments, term appointments, and any other
nonstatus nontemporary appointments which meet the definition of
provisional appointments contained
[[Page 5180]]
in Secs. 316.401 and 316.403 of this chapter.
* * * * *
12. Section 351.504 is revised to read as follows:
Sec. 351.504 Credit for performance.
(a) Ratings used. (1) Only ratings of record as defined in
Sec. 351.203 shall be used as the basis for granting additional
retention service credit in a reduction in force.
(2) For employees who received ratings of record while covered by
part 430, subpart B, of this chapter, those ratings of record shall be
used to grant additional retention service credit in a reduction in
force.
(3) For employees who received performance ratings while not
covered by the provisions of 5 U.S.C. 43 and part 430, subpart B, of
this chapter, those performance ratings shall be considered ratings of
record for granting additional retention service credit in a reduction
in force only when it is determined that those performance ratings are
equivalent ratings of record under the provisions of Sec. 430.201(c) of
this chapter. The agency conducting the reduction in force shall make
that determination.
(b) Time frame. (1) An employee's entitlement to additional
retention service credit for performance under this subpart shall be
based on the employee's three most recent ratings of record received
during the 4-year period prior to the date of issuance of reduction in
force notices, except as otherwise provided in this paragraph (b)(1),
and in paragraphs (b)(2) and (c) of this section. At its option, an
agency may instead use the employee's three most recent ratings of
record received during a 5-year or 6-year period prior to the date of
issuance of reduction in force notices or an agency established cutoff
date after which no new ratings of record will be put on record. The 5-
year period becomes mandatory on October 1, 1998. The 6-year period
becomes mandatory on October 1, 1999.
(2) To provide adequate time to determine employee retention
standing, an agency may provide for a cutoff date, a specified number
of days prior to the issuance of reduction in force notices after which
no new ratings of record will be put on record and used for purposes of
this subpart. When a cutoff date is used, an employee will receive
performance credit for the three most recent ratings of record received
during the applicable 4-, 5-, or 6-year period prior to the cutoff
date.
(3) To be creditable for purposes of this subpart, a rating of
record must have been issued to the employee, with all appropriate
reviews and signatures, and must also be on record (i.e., the rating of
record is available for use by the office responsible for establishing
retention registers).
(4) The awarding of additional retention service credit based on
performance for purposes of this subpart, including the decision to use
a 4-, 5-, or 6-year period for performance ratings, must be uniformly
and consistently applied within a competitive area, and must be
consistent with the agency's appropriate issuance(s) that implement
these policies. Each agency must specify in its appropriate
issuance(s):
(i) The conditions under which a rating of record is considered to
have been received for purposes of determining whether it is within the
applicable 4-, 5-, or 6-year period prior to either the date the agency
issues reduction in force notices or the agency-established cutoff date
for ratings of record, as appropriate; and
(ii) If the agency elects to use a cutoff date, the number of days
prior to the issuance of reduction in force notices after which no new
ratings of record will be put on record and used for purposes of this
subpart.
(c) Missing ratings. Additional retention service credit for
employees who do not have three actual ratings of record during the
applicable 4-, 5-, or 6-year period prior to the date of issuance of
reduction in force notices or the applicable 4-, 5-, or 6-year period
prior to the agency-established cutoff date for ratings of record
permitted in paragraph (b)(2) of this section shall be determined, as
appropriate, under paragraphs (d) or (e) of this section, as follows:
(1) An employee who has not received any rating of record during
the applicable 4-, 5-, or 6-year period shall receive credit for
performance on the basis of an assumed rating. The value of that
assumed rating will be determined according to the length of the
employee's current continuous service and on the basis of the summary
level pattern that applies to the employee's official position of
record at the time of the reduction in force.
(i) An employee who has completed at least one year of current
continuous service will be given the additional retention service
credit based on the modal rating for that summary level pattern.
(ii) An employee who has not completed at least one year of current
continuous service will be given the additional retention service
credit for a Level 3 (Fully Successful or equivalent) rating of record
under that summary level pattern.
(2) An employee who has received at least one but fewer than three
previous ratings of record shall receive credit for performance on the
basis of the value of the actual rating(s) of record divided by the
number of actual ratings received. If an employee has received only two
actual ratings of record during the period, the value of the ratings is
added together and divided by two to determine the amount of additional
retention service credit. If an employee has received only one actual
rating during the period, its value is the amount of additional
retention service credit provided.
(d) Single rating pattern. If all employees in a reduction in force
competitive area have received ratings of record under a single pattern
of summary levels as set forth in Sec. 430.208(d) of this chapter, the
additional retention service credit provided to employees shall be
expressed in additional years of service and shall consist of the
mathematical average (rounded in the case of a fraction to the next
higher whole number) of the employee's applicable ratings of record,
under paragraphs (b)(1) and (c) of this section computed on the
following basis:
(1) Twenty additional years of service for each rating of record
with a Level 5 (Outstanding or equivalent) summary;
(2) Sixteen additional years of service for each rating of record
with a Level 4 summary; and
(3) twelve additional years of service for each rating of record
with a Level 3 (Fully Successful or equivalent) summary.
(e) Multiple rating patterns. If an agency has employees in a
competitive area who have ratings of record under more than one pattern
of summary levels, as set forth in Sec. 430.208(d) of this chapter, it
shall consider the mix of patterns and provide additional retention
service credit for performance to employees expressed in additional
years of service in accordance with the following:
(1) Additional years of service shall consist of the mathematical
average (rounded in the case of a fraction to the next higher whole
number) of the additional retention service credit that the agency
established for the summary levels of the employee's applicable
rating(s) of record.
(2) The agency shall establish the amount of additional retention
service credit provided for summary levels only in full years; the
agency shall not establish additional retention service credit for
summary levels below Level 3 (Fully successful or equivalent).
[[Page 5181]]
(3) When establishing additional retention service credit for the
summary levels at Level 3 (Fully Successful or equivalent) and above,
the agency shall establish at least 12 years, and no more than 20
years, additional retention service credit for a summary level.
(4) The agency may establish the same number of years additional
retention service credit for more than one summary level.
(5) The agency shall establish the same number of years additional
retention service credit for all ratings of record with the same
summary level in the same pattern of summary levels as set forth in
Sec. 430.208(d) of this chapter.
(6) The agency may establish a different number of years additional
retention service credit for the same summary level in different
patterns.
(7) The agency may apply paragraphs (e)(1) through (e)(6) of this
section only to ratings of record put on record on or after October 1,
1997. The agency shall establish the additional retention service
credit for ratings of record put on record prior to that date in
accordance with paragraphs (d)(1) through (d)(3) of this section.
(f) Documentation of credit. In implementing paragraph (e) of this
section, the agency shall specify the number(s) of years additional
retention service credit that it will establish for summary levels.
This information shall be made readily available for review.
13. In Sec. 351.602, paragraph (c) is revised to read as follows:
Sec. 351.602 Prohibitions.
* * * * *
(c) A written decision under part 432 or 752 of this chapter of
removal or demotion from the competitive level.
14. In Sec. 351.701, paragraph (f) is added to read as follows:
Sec. 351.701 Assignment involving displacement.
* * * * *
(f)(1) In determining applicable grades (or grade intervals) under
Secs. 351.701(b)(2) and 351.701(c)(2), the agency uses the grade
progression of the released employee's position of record to determine
the grade (or interval) limits of the employee's assignment rights.
(2) For positions covered by the General Schedule, the agency must
determine whether a one-grade, two-grade, or mixed grade interval
progression is applicable to the position of the released employee.
(3) For positions not covered by the General Schedule, the agency
must determine the normal line of progression for each occupational
series and grade level to determine the grade (or interval) limits of
the released employee's assignment rights. If the agency determines
that there is no normal line of progression for an occupational series
and grade level, the agency provides the released employee with
assignment rights to positions within three actual grades lower on a
one-grade basis. The normal line of progression may include positions
in different pay systems.
(4) For positions where no grade structure exists, the agency
determines a line of progression for each occupation and pay rate, and
provides assignment rights to positions within three grades (or
intervals) lower on that basis.
(5) If the released employee holds a position that is less than
three grades above the lowest grade in the applicable classification
system (e.g., the employee holds a GS-2 position), the agency provides
the released employee with assignment rights up to three actual grades
lower on a one-grade basis in other pay systems.
15. In Sec. 351.705, paragraph (a)(3) is revised to read as
follows:
Sec. 351.705 Administrative assignment.
(a) * * *
(3) Provide competing employees in the excepted service with
assignment rights to other positions under the same appointing
authority on the same basis as assignment rights provided to
competitive service employees under Sec. 351.701 and in paragraphs (a)
(1) and (2) of this section.
* * * * *
16. In Sec. 351.802, paragraph (a)(2) is revised to read as
follows:
Sec. 351.802 Content of notice.
(a) * * *
(2) The employee's competitive area, competitive level, subgroup,
service date, and three most recent ratings of record received in
the applicable 4-, 5-, 6-year period, as provided in
Sec. 351.504(b)(1).
* * * * *
17. In Sec. 351.803, paragraph (a) is revised to read as follows:
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 and career transition assistance under
subparts B (Reemployment Priority List), F and G (Career Transition
Assistance Programs) of part 330 of this chapter. The employee must
also be given a form to authorize, at his or her option, the release of
his or her resume and other relevant employment information for
employment referral to State Dislocated Worker Units and potential
public or private sector employers. The employee must also be given
information concerning how to apply both for unemployment insurance
through the appropriate State program and benefits available under the
State dislocated worker unit(s), as designated or created under title
III of the Job Training Partnership Act, and an estimate of severance
pay (if eligible).
* * * * *
18. Section 351.804 is revised to read as follows:
Sec. 351.804 Expiration of notice.
(a) A notice expires 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.
(b) An agency may not take the action before the effective date in
the notice; instead, the agency may cancel the reduction in force
notice and issue a new notice subject to this subpart.
19. Section 351.805 is revised to read as follows:
Sec. 351.805 New notice required.
(a) 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.
(b) An agency must give a employee an amended written notice if the
reduction in force is changed to a later date. A reduction in force
action taken after the date specified in the notice given to the
employee is not 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 a reduction in force action as a result of the change
in dates.
(c) An agency must give an employee an amended written notice and
allow the employee to decide whether to accept a better offer of
assignment under subpart G of this part that becomes available before
or on the effective date of the reduction in force. The agency must
give the employee the amended notice regardless of whether the employee
has accepted or rejected a previous offer of assignment, provided that
the employee has not voluntarily separated from his or her official
position.
[[Page 5182]]
PART 430--PERFORMANCE MANAGEMENT
20. The authority citation for part 430 continues to read as
follows:
Authority: 5 U.S.C. chapter 43.
21. In Sec. 430.201, paragraph (c) is added to read as follows:
Sec. 430.201 In General.
* * * * *
(c) Equivalent ratings of record. (1) If an agency has
administratively adopted and applied the procedures of this subpart to
evaluate the performance of its employees, the ratings of record
resulting from that evaluation are considered ratings of record for
reduction in force purposes.
(2) Other performance evaluations given while an employee is not
covered by the provisions of this subpart are considered ratings of
record for reduction in force purposes when the performance
evaluation--
(i) Was issued as an officially designated evaluation under the
employing agency's performance evaluation system,
(ii) Was derived from the appraisal of performance against
expectations that are established and communicated in advance and are
work related, and
(iii) identified whether the employee performed acceptably.
(3) When the performance evaluation does not include a summary
level designator and pattern comparable to those established at
Sec. 430.208(d), the agency may identify a level and pattern based on
information related to the appraisal process.
22. In Sec. 430.203. the definitions of Critical element,
Performance rating, and Rating of record are revised to read as
follows:
Sec. 430.203 Definitions.
* * * * *
Critical element means a work assignment or responsibility of such
importance that unacceptable performance on the element would result in
a determination that an employee's overall performance is unacceptable.
Such elements shall be used to measure performance only at the
individual level.
* * * * *
Performance rating means the written, or otherwise recorded,
appraisal of performance compared to the performance standard(s) for
each critical and non-critical element on which there has been an
opportunity to perform for the minimum period. A performance rating may
include the assignment of a summary level within a pattern (as
specified in Sec. 430.208(d)).
* * * * *
Rating of record means the performance rating prepared at the end
of an appraisal period for performance of agency assigned duties over
the entire period and the assignment of a summary level within a
pattern (as specified in Sec. 430.208(d)) or in accordance with
Sec. 531.404(a)(1) of this chapter. These constitute official ratings
of record referenced in this chapter.
23. In Sec. 430.206, paragraphs (a)(2) and (b)(4) are revised,
paragraphs (b)(6) and (b)(7) are redesignated as paragraphs (b)(7) and
(b)(8) respectively, and a new paragraph (b)(6) is added to read as
follows:
Sec. 430.206 Planning performance.
(a) * * *
(2) Each program shall specify a single length of time as its
appraisal period. The appraisal period generally shall be 12 months so
that employees are provided a rating of record on an annual basis. A
program's appraisal period may be longer when work assignments and
responsibilities so warrant or performance management objectives can be
achieved more effectively.
(b) * * *
(4) Each performance plan shall include all elements which are used
in deriving and assigning a summary level, including at least one
critical element and any non-critical element(s).
* * * * *
(6) A performance plan established under an appraisal program that
uses only two summary levels (pattern A as specified in
Sec. 430.208(d)(1)) shall not include non-critical elements.
* * * * *
24. In Sec. 430.208, the introductory text to paragraph (d)(2) is
revised, paragraph (d)(4) is revised, and a new paragraph (d)(5) is
added to read as follows:
Sec. 430.208 Rating performance.
* * * * *
(d) * * *
(2) Within any of the patterns shown in paragraph (d)(1) of this
section, summary levels shall comply with the following requirements:
* * * * *
(4) The designation of a summary level and its pattern shall be
used to provide consistency in describing ratings of record and as a
reference point for applying other related regulations, including, but
not limited to, assigning additional retention service credit under
Sec. 351.504 of this chapter.
(5) Under the provisions of Sec. 351.504(f) of this chapter, the
number of years additional retention service credit established for a
summary level of a rating of record shall be applied in a uniform and
consistent manner within a competitive area in any given reduction in
force, but the number of years may vary:
(i) In different reductions in force;
(ii) In different competitive areas; and
(iii) In different summary level patterns within the same
competitive area.
* * * * *
PART 531--PAY UNDER THE GENERAL SCHEDULE
25. The authority citation for part 531 continues to read as
follows:
Authority: 5 U.S.C. 5115, 5307, and 5338; sec. 4 of Pub. L. 103-
89, 107 Stat. 981; and E.O. 12748, 56 FR 4521, 3 CFR 1991 Comp., p.
316;
Subpart B also issued under 5 U.S.C. 5303(g), 5333, 5334(a), and
7701(b)(2);
Subpart C also issued under 5 U.S.C. 5304, 5305, and 5553; sections
302 and 404 of FEPCA, Pub. L. 101-509, 104 Stat. 1462 and 1466; and
section 3(7) of Pub. L. 102-378, 106 Stat. 1356;
Subpart D also issued under 5 U.S.C. 5335(g) and 7701(b)(2);
Subpart E also issued under 5 U.S.C. 5336;
Subpart F also issued under 5 U.S.C. 5304, 5305(g)(1), and 5553;
and E.O. 12883, 58 FR 63281, 3 CFR, 1993 Comp., p. 682;
Subpart G also issued under 5 U.S.C. 5304, 5305, and 5553; section
302 of the Federal Employees Pay Comparability Act of 1990 (FEPCA),
Pub. L. 101-509, 104 Stat. 1462; and E.O. 12786, 56 FR 67453, 3 CFR,
1991 Comp., p. 376.
26. In Sec. 531.409, paragraphs (c)(1), (c)(2)(i), and (c)(2)(ii)
are revised to read as follows:
Sec. 531.409 Acceptable level of competence determinations.
* * * * *
(c) Delay in determination. (1) An acceptable level of competence
determination shall be delayed when, and only when, either of the
following applies:
(i) An employee has not had the minimum period of time established
at Sec. 430.207(a) of this chapter to demonstrate acceptable
performance because he or she has not been informed of the specific
requirements for performance at an acceptable level of competence in
his or her current position, and the employee has not been given a
performance rating in any position within the minimum period of time
(as established at Sec. 430.207(a) of this chapter) before the end of
the waiting period; or
[[Page 5183]]
(ii) An employee is reduced in grade because of unacceptable
performance to a position in which he or she is eligible for a within-
grade increase or will become eligible within the minimum period as
established at Sec. 430.207(a) of this chapter.
(2) * * *
(i) The employee shall be informed that his or her determination is
postponed and the appraisal period extended and shall be told of the
specific requirements for performance at an acceptable level of
competence.
(ii) An acceptable level of competence determination shall then be
made based on the employee's rating of record completed at the end of
the extended appraisal period.
* * * * *
[FR Doc. 97-2686 Filed 2-3-97; 8:45 am]
BILLING CODE 6325-01-M