[Federal Register Volume 63, Number 157 (Friday, August 14, 1998)]
[Proposed Rules]
[Pages 43640-43641]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-21802]


      
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 Proposed Rules
                                                 Federal Register
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 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. 63, No. 157 / Friday, August 14, 1998 / 
Proposed Rules  

[[Page 43640]]


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OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 351

RIN 3206-AI09


Reduction in Force Service Credit; Retention Records

AGENCY: Office of Personnel Management.

ACTION: Proposed rulemaking.

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SUMMARY: The Office of Personnel Management (OPM) is proposing 
regulations that cover service credit for retention purposes. These 
proposed regulations also cover access to retention records by 
employees and their representatives.

DATES: Written comments will be considered if received no later than 
October 13, 1998.

ADDRESSES: Send or deliver written comments to: Associate Director for 
Employment Service, Room 6F08, Office of Personnel Management, 
Washington, DC 20415.

FOR FURTHER INFORMATION CONTACT: Thomas A. Glennon or Jacqui R. Yeatman 
at (202) 606-0960, FAX (202) 606-2329.

SUPPLEMENTARY INFORMATION:

Background

    OPM's retention regulations found in part 351 are published under 
authority of 5 U.S.C. 3502(a). The statute provides that OPM's 
reduction in force regulations must give effect to four factors in 
releasing employees: (1) tenure of employment (i.e., type of 
appointment); (2) veterans' preference; (3) length of service; and (4) 
performance ratings.
    These proposed regulations cover the crediting of civilian and 
uniformed service for purposes of reduction in force competition under 
part 351 of this title. Specifically, these regulations clarify 
longstanding OPM policy on what types of service are creditable when an 
agency establishes the order of retention for competing employees in a 
reduction in force.
    These regulations are further implemented through instructions 
found in the OPM Operating Manual, ``The Guide to Processing Personnel 
Actions,'' Chapter 6, ``Determining Creditable Service and Determining 
Service Computation Dates (SCD's).''
    These proposed regulations also cover who has access to reduction 
in force retention records, when that access is available, and what 
records are available for review.

Service Credit

    Proposed Sec. 351.503(a) provides that all civilian service as a 
Federal employee, as defined in 5 U.S.C. 2105(a), is creditable for 
purposes of determining the reduction in force rights of a competing 
employee. Civilian service that does not meet the definition set forth 
in 5 U.S.C. 2105(a) would be creditable for retention purposes only if 
specifically authorized by statute.
    Proposed Sec. 351.503(b)(1) notes that, except as provided in 
Sec. 351.501(b)(2) and (b)(3), all active duty in a uniformed service, 
as defined in 5 U.S.C. 2101(3), is creditable for purposes of 
determining employees' retention rights.
    Consistent with 5 U.S.C. 3502(a)(A) and (b), a retired member of a 
uniformed service who is receiving retired pay based upon 20 or more 
years of active service in the Armed Forces is generally entitled to 
credit under this part only for the length of time in active service in 
the Armed Forces during a war, or active duty served in a campaign or 
expedition for which a campaign badge or expeditionary medal has been 
authorized. The employee is entitled to the total length of time in 
active service in the Armed Forces only if the employee is considered a 
preference eligible under 5 U.S.C. 3501(a)(3).
    Proposed Sec. 351.503(b)(3) provides that an employee may not 
receive dual retention service credit for service performed on active 
duty in the Armed Forces that was performed during concurrent civilian 
employment as a Federal employee.
    Proposed Sec. 351.503(c)(1) provides that the agency is responsible 
for establishing both the service computation date, and the adjusted 
service computation date, applicable to each employee competing for 
retention. Also, the agency is responsible for adjusting the service 
computation dates to withhold retention service credit for 
noncreditable service.
    Proposed Sec. 351.503(c)(2) provides that the service computation 
date includes all actual creditable service under paragraph (a) and 
paragraph (b) of this section.
    Proposed Sec. 351.503(c)(3) provides that the adjusted service 
computation date includes all actual creditable service under sections 
351.503(a) and (b), and additional retention service credit for 
performance authorized by section 351.504(d).
    Proposed Sec. 351.503(d) covers the calculation of the service 
computation date for retention purposes.
    Proposed Sec. 351.503(e) covers the calculation of the adjusted 
service computation date that includes additional service credit for 
retention purposes that is authorized by section 351.504(d).

Retention Records

    Proposed Sec. 351.505(a) provides that the agency is responsible 
for maintaining the correct personnel records that are used to 
determine employees' retention standing.
    Proposed Sec. 351.505(b) provides that the agency must allow its 
retention registers and related records to be inspected by an employee 
of the agency who has received a specific reduction in force notice, 
and/or the employee's representative if the representative is acting on 
behalf of that individual employee. Proposed Sec. 351.505(b) also 
provides that an authorized representative of OPM has the right to 
review an agency's retention records.
    Proposed Sec. 351.505(c) provides that an employee who has received 
a specific notice of reduction in force has the right to review any 
completed records used by the agency in a reduction in force action 
that was taken, or will be taken, against the employee.
    Proposed Sec. 351.505(d) provides that an employee who has not 
received a specific reduction in force notice has no right to review 
the agency's retention registers and related records.
    Proposed Sec. 351.505(e) provides that the agency is responsible 
for ensuring that each employee's access to retention records is 
consistent with both the Freedom of Information Act and the Privacy 
Act.
    Proposed Sec. 351.505(f) provides that the agency must preserve all 
registers and records relating to a reduction in

[[Page 43641]]

force for at least 1 year after the date the agency issues specific 
reduction in force notices.

Regulatory Flexibility Act

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

List of Subjects in Part 351

    Administrative practice and procedure, Government employees.

U.S. Office of Personnel Management.
Janice R. Lachance,
Director.

    Accordingly, OPM proposes to amend part 351 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. Section 351.503 is revised to read as follows:


Sec. 351.503  Length of service.

    (a) All civilian service as a Federal employee, as defined in 5 
U.S.C. 2105(a), is creditable for purposes of this part. Civilian 
service performed in employment that does not meet the definition of 
Federal employee set forth in 5 U.S.C. 2105(a) is creditable for 
purposes of this part only if specifically authorized by statute as 
creditable for retention purposes.
    (b)(1) As authorized by 5 U.S.C. 3502(a)(A), all active duty in a 
uniformed service, as defined in 5 U.S.C. 2101(3), is creditable for 
purposes of this part, except as provided in paragraphs (b)(2) and 
(b)(3) of this section.
    (2) As authorized by 5 U.S.C. 3502(a)(B), a retired member of a 
uniformed service who is covered by Sec. 351.501(d) is entitled to 
credit under this part only for:
    (i) The length of time in active service in the Armed Forces during 
a war, or in a campaign or expedition for which a campaign or 
expedition badge has been authorized; or
    (ii) The total length of time in active service in the Armed Forces 
if the employee is considered a preference eligible under 5 U.S.C. 2108 
and 5 U.S.C. 3501(a), as implemented in Sec. 351.501(d).
    (3) An employee may not receive dual service credit for purposes of 
this part for service performed on active duty in the Armed Forces that 
was performed during concurrent civilian employment as a Federal 
employee, as defined in 5 U.S.C. 2105(a).
    (c)(1) The agency is responsible for establishing both the service 
computation date, and the adjusted service computation date, applicable 
to each employee competing for retention under this part. If 
applicable, the agency is also responsible for adjusting the service 
computation date and the adjusted service computation date to withhold 
retention service credit for noncreditable service.
    (2) The service computation date includes all actual creditable 
service under paragraph (a) and paragraph (b) of this section.
    (3) The adjusted service computation date includes all actual 
creditable service under paragraph (a) and paragraph (b) of this 
section, and additional retention service credit for performance 
authorized by Sec. 351.504(d).
    (d) The service computation date is computed on the following 
basis:
    (1) The effective date of appointment as a Federal employee under 5 
U.S.C. 2105(a) when the employee has no previous creditable service 
under paragraph (a) or (b) of this section; or if applicable,
    (2) The date calculated by subtracting the employee's total 
previous creditable service under paragraph (a) or (b) of this section 
from the most recent effective date of appointment as a Federal 
employee under 5 U.S.C. 2105(a).
    (e) The adjusted service computation date is calculated by 
subtracting from the date in paragraph (d)(1) or (d)(2) of this section 
the additional service credit for retention authorized by 
Sec. 351.504(d).
    3. Sec. 351.505 is revised to read as follows:


Sec. 351.505   Records.

    (a) The agency is responsible for maintaining correct personnel 
records that are used to determine the retention standing of its 
employees competing for retention under this part.
    (b) The agency must allow its retention registers and related 
records to be inspected by:
    (1) An employee of the agency who has received a specific reduction 
in force notice, and/or the employee's representative if the 
representative is acting on behalf of the individual employee; and
    (2) An authorized representative of OPM.
    (c) An employee who has received a specific notice of reduction in 
force under authority of subpart H of this part has the right to review 
any completed records used by the agency in a reduction in force action 
that was taken, or will be taken, against the employee, including:
    (1) The complete retention register with the released employee's 
name and other relevant retention information (including the names of 
all other employees listed on that register, their individual service 
computation dates calculated under Sec. 351.503(d), and their adjusted 
service computation dates calculated under Sec. 351.503(e)) so that the 
employee may consider how the agency constructed the competitive level, 
and how the agency determined the relative retention standing of the 
competing employees; and
    (2) The complete retention registers for other positions that could 
affect the composition of the employee's competitive level, and/or the 
determination of the employee's assignment rights (e.g., registers to 
which the released employee may have potential assignment rights under 
Sec. 351.701(b) and (c)).
    (d) An employee who has not received a specific reduction in force 
notice has no right to review the agency's retention registers and 
related records.
    (e) The agency is responsible for ensuring that each employee's 
access to retention records is consistent with both the Freedom of 
Information Act (5 U.S.C. 552), and the Privacy Act (5 U.S.C. 552a).
    (f) The agency must preserve all registers and records relating to 
a reduction in force for at least 1 year after the date it issues a 
specific reduction in force notice.

[FR Doc. 98-21802 Filed 8-13-98; 8:45 am]
BILLING CODE 6325-01-P