[Federal Register Volume 62, Number 46 (Monday, March 10, 1997)]
[Rules and Regulations]
[Pages 10681-10683]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-5835]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
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Federal Register / Vol. 62, No. 46 / Monday, March 10, 1997 / Rules
and Regulations
[[Page 10681]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Parts 351 and 630
RIN 3206-AH64
Reduction in Force and Mandatory Exceptions
AGENCY: Office of Personnel Management.
ACTION: Interim rulemaking.
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SUMMARY: The Office of Personnel Management (OPM) is issuing interim
regulations that implement recent legislation giving employees the
right to use annual leave to establish initial retirement eligibility
for employees in reduction in force and other restructuring situations.
These regulations also implement related provisions concerning the
availability of annual leave to qualify for continuance of health
benefits in the same situation.
DATES: These regulations are effective March 10, 1997. Comments must be
received on or before May 9, 1997.
ADDRESSES: Send or deliver written comments to: Mary Lou Lindholm,
Associate Director for Employment Service, Room 6F08, Officer of
Personnel Management, Washington, DC 20415.
FOR FURTHER INFORMATION CONTACT:
(part 351) Thomas A. Glennon or Edward P. McHugh, (202) 606-0960, FAX
(202) 606-2329; (part 630) Jo Ann Perrini, (202) 606-2858, FAX (202)
606-0824.
SUPPLEMENTARY INFORMATION: Section 634 of the Treasury, Postal Service,
and General Government Appropriations Act, 1997, as contained in
section 101(f) of the Omnibus Consolidated Appropriations Act, 1997
(P.L. 104-208, approved September 30, 1996), provides that an employee
who is being involuntarily separated from an agency due to reduction in
force or transfer of function may elect to use annual leave and remain
on the agency's rolls after the effective date the employee would
otherwise have been separated in order to establish initial eligibility
for immediate retirement, including discontinued service or voluntary
early retirement. The same option is also available to acquire
eligibility to continue health benefits into retirement. These
provisions are codified in new 5 U.S.C. 6302(g).
Since January 1993, OPM has provided similar benefits by
regulation. Presently, an agency may elect to retain on annual leave an
employee who has received a specific reduction in force notice so that
the employee may establish initial eligibility for retirement, and/or
for continuance of health benefits into retirement (58 FR 5563, January
22, 1993, as amended at 60 FR 2678, January 11, 1995). For an employee
to achieve initial eligibility in a reduction in force situation,
agencies use a ``Permissive Temporary Exception'' under authority of
section 5 CFR 351.608(d) to retain an employee past the effective date
that the employee would have been separated.
The new 5 U.S.C. 6302(g) required two major changes to OPM's
regulatory provisions: (1) an employee who is being involuntarily
separated now has a right to use his or her annual leave to achieve
initial eligibility for retirement and/or continued health benefits
coverage; and (2) this right extends to transfer of function relocation
situations.
To implement 5 U.S.C. 6302(g), section 5 CFR 351.606, Mandatory
exceptions, is revised by adding a new paragraph (b).
Section 5 CFR 351.606(b)(1) provides that an employee who is being
involuntarily separated from an agency because of reduction in force
under authority of 5 CFR part 351 may elect to use annual leave past
the date that the employee would otherwise have been separated for the
purpose of establishing initial eligibility under sections 5 U.S.C.
8336, 8412, or 8414 for immediate retirement, including discontinued
service or voluntary early retirement.
Section 5 CFR 351.606(b)(1) also provides the same election option
so that an employee who is being involuntarily separated from an agency
because of reduction in force may use annual leave for the purpose of
acquiring initial eligibility under 5 U.S.C. 8905 to continue health
benefits into retirement.
Section 5 CFR 351.606(b)(2) provides that an employee who is being
involuntarily separated as an adverse action because of the employee's
decision to decline relocation (including transfer of function) may use
annual leave to remain on the agency's rolls after the effective date
of the relocation to establish initial eligibility for immediate
retirement under 5 U.S.C. 8336, 8412, or 8414 (including discontinued
service or voluntary early retirement), and/or to establish initial
eligibility under 5 U.S.C. 8905 to continue health benefits coverage
into retirement.
Section 5 CFR 351.606(b)(3) provides that the entitlements under 5
U.S.C. 6302(g) apply to employees covered by chapter 63 of title 5,
United States Code.
Section 5 CFR 351.606(b)(4) provides that an agency may not retain
any employee under the provisions of 5 U.S.C. 6302(g) past the date
that the employee first becomes eligible for immediate retirement, and/
or for continuation of health benefits into retirement.
Section 5 CFR 351.606(b)(5) provides that, except as permitted by 5
CFR 351.608(d), an agency may not approve an employee's use of any
other type of leave after the employee has been retained under a
temporary exception.
Section 5 CFR 351.606(b)(6) clarifies that the annual leave that
may be used for the purpose of remaining on an agency's rolls to
establish eligibility for immediate retirement and/or establish initial
eligibility to continue health benefits coverage into retirement is
described in 5 CFR 630.212.
Section 630.212 states that all accumulated, accrued, and restored
annual leave to an employee's credit prior to the effective date of a
reduction in force or relocation and annual leave earned by an employee
while in a paid leave status after the effective date of the reduction
in force or relocation may be used for these purpose. However, annual
leave that is advanced to an employee under 5 U.S.C. 6302(d) may not be
used for these purposes. In addition, an employing agency may permit an
approved leave recipient to use for these purposes any or all annual
leave donated under 5 CFR part 630,
[[Page 10682]]
subpart I, or made available under 5 CFR part 630, subpart J, as of the
effective of the reduction in force or relocation.
In conforming changes, section 5 CFR 351.606(a) is revised with a
reference label, and former section 5 CFR 351.606(b) is found in a new
section 5 CFR 351.606(c), also with a reference label.
In another conforming change, section 5 CFR 351.608 is revised as a
result of the entitlements provided under 5 U.S.C. 6302(g). Also, a new
section 5 CFR 351.608(e) provides that an employee who is not covered
by chapter 63 of title 5, United States Code, but who is being
involuntarily separated from an agency because of reduction in force
under part 5 CFR 351, may, at the agency's discretion, elect to use
annual leave past the date that the employee would otherwise have been
separated for the purpose of establishing initial eligibility under
sections 5 U.S.C. 8336, 8412, or 8414 (or other authority) for
immediate retirement, including discontinued service or voluntary early
retirement, and/or establishing eligibility under 5 U.S.C. 8905 (or
other authority) to continue health benefits coverage into retirement.
An additional conforming change revises section 351.506(b) to
provide, consistent with prior policy, that the retention standing of
each employee retained in a competitive level as an exception under
section 351.606(b), as well as sections 351.607 or section 351.608, is
determined as of the date the employee would have been released had the
exception not been used. The retention standing of each employee
retained under any of these three exceptions remains fixed until
completion of the reduction in force action which resulted in the
mandatory or permissive temporary retention.
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 good cause exists to make
this amendment effective in less than 30 days. The delay in the
effective date is being waived because these regulations provide a
benefit authorized by statute rather than eliminating or modifying
existing benefits. This amendment gives full effect to the benefits
extended by the amended provisions of the statute 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 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 in Parts 351 and 630
Administrative practice and procedure, Government employees.
U.S. Office of Personnel Management.
James B. King,
Director.
Accordingly, OPM is amending parts 351 and 630 of title 5, Code of
Federal Regulations, as follows:
PART 351--REDUCTION IN FORCE
1. The authority citation for part 351 continues to read as
follows:
Authority: 5 U.S.C. 1302, 3502, 3503; sec. 351.801 also issued
under E.O. 12828, 58 FR 2965.
2. In Sec. 351.506, paragraph (b) is revised to read as follows:
Sec. 351.506 Effective date of retention standing.
* * * * *
(b) The retention standing of each employee retained in a
competitive level as an exception under Sec. 351.606(b), Sec. 351.607,
or Sec. 351.608, is determined as of the date the employee would have
been released had the exception not been used. The retention standing
of each employee retained under any of these provisions remains fixed
until completion of the reduction in force action which resulted in the
temporary retention.
* * * * *
3. Sec. 351.606 is revised to read as follows:
Sec. 351.606 Mandatory exceptions.
(a) Armed Forces restoration rights. When a agency applies
Sec. 351.601 or Sec. 351.605, it shall give retention priorities over
other employees in the same subgroup to each group I or II employee
entitled under 38 U.S.C. 2021 or 2024 to retention for, as applicable,
6 months or 1 year after restoration, as provided in part 353 of this
chapter.
(b) Use of annual leave to reach initial eligibility for retirement
or continuance of health benefits. (1) An agency shall make a temporary
exception under this section to retain an employee who is being
involuntarily separated under this part, and who elects to use annual
leave to remain on the agency's rolls after the effective date the
employee would otherwise have been separated by reduction in force, in
order to establish initial eligibility for immediate retirement under 5
U.S.C. 8336, 8412, or 8414, and/or to establish initial eligibility
under 5 U.S.C. 8905 to continue health benefits coverage into
retirement.
(2) An agency shall make a temporary exception under this section
to retain an employee who is being involuntarily separated under
authority of part 752 of this chapter because of the employee's
decision to decline relocation (including transfer of function), and
who elects to use annual leave to remain on the agency's rolls after
the effective date the employee would otherwise have been separated by
adverse action, in order to establish initial eligibility for immediate
retirement under 5 U.S.C. 8336, 8412, or 8414, and/or to establish
initial eligibility under 5 U.S.C. 8905 to continue health benefits
coverage into retirement.
(3) An employee retained under paragraph (b) by this section must
be covered by chapter 63 of title 5, United States Code.
(4) An agency may not retain an employee under paragraph (b) of
this section past the date that the employee first becomes eligible for
immediate retirement, or for continuation of health benefits into
retirement, except that an employee may be retained long enough to
satisfy both retirement and health benefits requirements.
(5) Except as permitted by 5 CFR 351.608(d), an agency may not
approve an employee's use of any other type of leave after the employee
has been retained under a temporary exception authorized by paragraph
(b) of this section.
(6) Annual leave for purposes of paragraph (b) of this section is
described in Sec. 630.212 of this chapter.
(c) Documentation. Each agency shall record on the retention
register, for inspection by each employee, the reasons for any
deviation from the order of release required by Sec. 351.601 or
Sec. 351.605.
4. Section 351.608 is revised to read as follows:
Sec. 351.608 Permissive temporary exceptions.
(a) General. (1) In accordance with this section, an agency may
make a temporary exception to the order of release in Sec. 351.601, and
to the action provisions of Sec. 351.603, when needed to retain an
employee after the effective date of a reduction in force. Except as
[[Page 10683]]
otherwise provided in paragraphs (c) and (e) of this section, an agency
may not make a temporary exception for more than 90 days.
(2) After the effective date of a reduction in force action, an
agency may not amend or cancel the reduction in force notice of an
employee retained under a temporary exception so as to avoid completion
of the reduction in force action. This does not preclude the employee
from receiving or accepting a job offer in the same competitive area in
accordance with a Reemployment Priority List established under part
330, subpart B, of this chapter, or under a Career Transition
Assistance Plan established under part 330, subpart E, of this chapter,
or equivalent programs.
(b) Undue interruption. 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 without
regard to the 90-day limit set forth under paragraph (a)(1) of this
section.
(d) Sick leave. An agency may make a temporary exception to retain
on sick leave a lower standing employee covered by chapter 63 of title
5, United States Code (or other applicable leave system for Federal
employees), who is on approved sick leave on the effective date of the
reduction in force, for a period not to exceed the date the employee's
sick leave is exhausted. Use of sick leave for this purpose must be in
accordance with the requirements in part 630, subpart D, of this
chapter (or other applicable leave system for Federal employees).
Except as authorized by Sec. 351.606(b), an agency may not approve an
employee's use of any other type of leave after the employee has been
retained under this paragraph (d).
(e)(1) An agency may make a temporary exception to retain on
accrued annual leave a lower standing employee who:
(i) Is being involuntarily separated under this part;
(ii) Is covered by a Federal leave system under authority other
than chapter 63 of title 5, United States Code; and,
(iii) Will attain first eligibility for an immediate retirement
benefit under 5 U.S.C. 8336, 8412, or 8414 (or other authority), and/or
establish eligibility under 5 U.S.C. 8905 (or other authority) to carry
health benefits coverage into retirement during the period represented
by the amount of the employee's accrued annual leave.
(2) An agency may not approve an employee's use of any other type
of leave after the employee has been retained under this paragraph (e).
(3) This exception may not exceed the date the employee first
becomes eligible for immediate retirement or for continuation of health
benefits into retirement, except that an employee may be retained long
enough to satisfy both retirement and health benefits requirements.
(4) Accrued annual leave includes all accumulated, accrued, and
restored annual leave, as applicable, in addition to annual leave
earned and available to the employee after the effective date of the
reduction in force. When approving a temporary exception under this
provision, an agency may not advance annual leave or consider any
annual leave that might be credited to an employee's account after the
effective date of the reduction in force other than annual leave earned
while in an annual leave status.
(f) Other exceptions. An agency may make a temporary exception
under this section to extend an employee's separation date beyond the
effective date of the reduction in force when the temporary retention
of a lower standing employee does not adversely affect the right of any
higher standing employee who is released ahead of the lower standing
employee. The agency may establish a maximum number of days, up to 90
days, for which an exception may be approved.
(g) Notice to employees. When an agency approves an exception for
more than 30 days, it must:
(1) Notify in writing each higher standing employee in the same
competitive level reached for release of the reasons for the exception
and the date the lower standing employee's retention will end; and
(2) List opposite the employee's name on the retention register the
reasons for the exception and the date the employee's retention will
end.
PART 630--ABSENCE AND LEAVE
5. The authority citation for part 630 continues to read as
follows:
Authority: 5 U.S.C. 6311; Sec. 630.301 also issued under Pub. L.
103-356, 108 Stat. 3410; Sec. 630.303 also issued under 5 U.S.C.
6133(a); Secs. 630.306 and 630.308 also issued under 5 U.S.C.
6304(d)(3), Pub. L. 102-484, 106 Stat. 2722, and Pub. L. 103-337,
108 Stat. 2663; subpart D also issued under Pub. L. 103-329, 108
Stat. 2423; Sec. 630.501 and subpart F also issued under E.O. 11228,
30 FR 7739, 3 CFR 1974 Comp., p. 163; subpart G also issued under 5
U.S.C. 6305; subpart H also issued under 5 U.S.C. 6326; subpart I
also issued under 5 U.S.C. 6332, Pub. L. 100-566, 102 Stat. 2834,
and Pub. L. 103-103, 107 Stat. 1022, subpart J also issued under 5
U.S.C. 6362, Pub. L. 100-566, and Pub. L. 103-103; subpart K also
issued under Pub. L. 102-25, 105 Stat. 92; and subpart L also issued
under 5 U.S.C. 6387 and Pub. L. 103-3, 107 Stat. 23.
6. In part 630, Sec. 630.212 is added to read as follows:
Sec. 630.212 Use of annual leave to establish initial eligibility for
retirement or continuation of health benefits.
(a) An employee may elect to use annual leave and remain on the
agency's rolls in order to establish initial eligibility for immediate
retirement under 5 U.S.C. 8336, 8412, or 8414, and/or to establish
initial eligibility under 5 U.S.C. 8905 to continue health benefits
coverage into retirement, as provided in:
(1) Section 351.606(b)(1) for an employee who would otherwise have
been separated by reduction in force procedures under part 351 of this
chapter; or
(2) Section 351.606(b)(2) of this chapter for an employee who would
otherwise have been separated by adverse action procedures under
authority of part 752 of this chapter because of the employee's
decision to decline relocation (including transfer of function).
(b)(1) Annual leave that may be used for the purposes described in
paragraph (a) of this section includes all accumulated, accrued, and
restored annual leave to the employee's credit prior to the effective
date of the reduction in force or relocation (including transfer of
function) and annual leave earned by an employee while in a paid leave
status after the effective date of the reduction in force or relocation
(including transfer of function).
(2) Annual leave that is advanced to an employee under 5 U.S.C.
6302(d), including any advance annual leave that may be credited to an
employee's leave account after the effective date of the reduction in
force or relocation (including transfer of function), may not be used
for purpose of this section.
(3) For purposes of this section, the employing agency may approve
the use of any or all annual leave donated to an employee under part
630, subpart I, of this chapter (Voluntary Leave Transfer Program), or
made available to the employee under part 630, subpart J, of this
chapter (Voluntary Leave Bank Program), as of the effective date of the
reduction in force or relocation.
[FR Doc. 97-5835 Filed 3-7-97; 8:45 am]
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