[Federal Register Volume 72, Number 50 (Thursday, March 15, 2007)]
[Proposed Rules]
[Pages 12122-12125]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-4701]


 ========================================================================
 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. 72, No. 50 / Thursday, March 15, 2007 / 
Proposed Rules  

[[Page 12122]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 351

RIN 3206-AL19


Representative Rate; Order of Release From Competitive Level; 
Assignment Rights

AGENCY: Office of Personnel Management.

ACTION: Proposed rule with request for comments.

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SUMMARY: The Office of Personnel Management (OPM) is issuing proposed 
regulations clarifying representative rate as used in OPM's retention 
regulations. These regulations clarify how an agency determines 
employees' retention rights when the agency has positions in one or 
more pay bands. These regulations also clarify the order in which an 
agency releases employees from a competitive level. Finally, these 
regulations clarify how an agency determines employees' retention 
rights when a competitive area includes more than one local commuting 
area.

DATES: We will consider comments received on or before May 14, 2007.

ADDRESSES: You may submit comments, identified by RIN 3206-AL19, by any 
of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     E-mail: [email protected]. Include ``RIN 3206-AL19'' in the 
subject line of the message.
     Fax: (202) 606-2329.
     Mail: Mark Doboga, Deputy Associate Director for Talent 
and Capacity Policy, U.S. Office of Personnel Management, Room 6551, 
1900 E Street NW., Washington, DC 20415-9700.
     Hand Delivery/Courier: OPM, Room 6551, 1900 E Street, NW., 
Washington, DC 20415.

FOR FURTHER INFORMATION CONTACT: Thomas A. Glennon by telephone on 202-
606-0960, by FAX on 202-606-2329, by TDD on 202-418-3134, or by e-mail 
at [email protected].

SUPPLEMENTARY INFORMATION:

Representative Rate

    To determine released competing employees' rights under OPM's 
reduction in force regulations in part 351 of title 5, Code of Federal 
Regulations (CFR), an agency may need to compare positions to determine 
the employee's eligibility to ``bump'' or ``retreat'' to a position in 
a different pay schedule. When two or more positions are in different 
pay schedules, the agency compares the representative rate of the 
positions to determine equivalent grade levels and the best offer of 
assignment for the released employee.
    The agency does not use representative rates to determine released 
employees' retention standing when all positions are in the same pay 
schedule. In this situation, the agency directly compares the grades or 
levels of the positions.
    Section 351.203 of OPM's current reduction in force regulations 
defines representative rate as (1) the fourth step of the grade for a 
position under the General Schedule (GS), (2) the prevailing rate for a 
position under the Federal Wage System (FWS), or similar wage-
determining procedure, and (3) for other positions (e.g., positions in 
an ungraded pay system, pay band positions, negotiated pay systems), 
the rate designated by the agency as representative of the position.
    OPM proposes to update the definition of representative rate in 
Sec.  351.203 with the following revisions:
    1. New paragraph (1) in the definition provides that representative 
rate is the fourth step of the grade for a position covered by the 
General Schedule, using the applicable locality rate authorized by 5 
U.S.C. 5304 and 5 CFR part 531, subpart F, for GS positions in the 48 
contiguous states. If the competitive area includes one local commuting 
area within a single locality pay area, the agency uses the same 
locality-adjusted representative rate for all GS positions at the same 
grade in the competitive area (e.g., all GS-7 positions have the same 
representative rate without regard to other pay such as special rates). 
For information, new paragraph (c)(5) of Sec.  351.403 explains that 
the agency selects a single locality-adjusted representative rate for 
all GS positions at the same grade when a competitive area includes 
more than one local commuting area covering more than one locality pay 
area.
    Under the current definition in Sec.  351.203, representative rate 
for GS positions does not include locality payments authorized by 5 
U.S.C. 5304 and 5 CFR part 531, subpart F. In contrast, pay for FWS 
positions includes a locality component that is defined as basic pay 
and is included in the current definition of representative rate.
    Our proposed change includes locality payments in the 
representative rate of GS positions located in the 48 contiguous 
states. This will allow agencies to determine employees' representative 
rates using a comparable locality component for both GS and FWS 
positions.
    2. New paragraph (2) in the definition continues current policy 
that representative rate is the prevailing rate for a position covered 
by an FWS or similar wage-determining procedure.
    3. New paragraph (3) in the definition provides that for positions 
in a pay band, representative rate is the rate the agency designates as 
representative of that pay band. Consistent with the inclusion of 
locality payments in the representative rates for GS positions, the 
proposed regulations also require agencies to include in the 
representative rate for a pay band any locality payment under 5 U.S.C. 
5304 (or equivalent payment under other legal authority) authorized for 
a position in that pay band for more equitable position comparisons.
    For example, the agency could establish a single representative 
rate for a pay band that includes administrative and support positions 
that would otherwise be classified from GS-5 through GS-7, or 
equivalent.
    The current definition of representative rate in Sec.  351.203 does 
not specifically address positions in a pay band. At present, for any 
positions other than GS and FWS (including positions in a banded 
system), the agency designates a rate that is representative of those 
positions.
    4. New paragraph (4) in the definition provides that for positions 
not covered by new paragraphs (1) through (3) (e.g., positions in an 
unclassified or negotiated pay system), the representative rate is the 
rate the agency designates as representative of the

[[Page 12123]]

position. Again, the proposed regulations require agencies to include 
any locality payment under 5 U.S.C. 5304 (or equivalent payment under 
other legal authority) that applies to such a position in the 
representative rate that it designates. At present, as noted 
previously, for any positions other than GS and FWS (including 
positions in an unclassified or negotiated pay system), the agency 
designates a rate that is representative of those positions.
    We note that, as under the current reduction in force regulations, 
the definition of representative rate in the proposed regulations is 
different from the definition of representative rate for the purposes 
of grade and pay retention under 5 CFR 536.103, severance pay under 5 
CFR 550.703, and discontinued service retirement under 5 CFR 
831.503(b)(3)(iv) and 842.206(c)(3)(iv). As under the current rules, 
agencies would need to apply each definition separately.

Competitive Level

    In Sec.  351.403, we revise paragraph (c)(4) and add new paragraphs 
(a)(5), (c)(5), and (c)(6).
    New paragraph (a)(5) of Sec.  351.403 provides that if a 
competitive area includes positions in one or more pay bands, each pay 
band set of interchangeable positions under the competitive level 
provisions of paragraphs (a)(1) through (4) of 5 CFR 351.403 is a 
separate competitive level. As appropriate, the entire pay band may be 
one competitive level, or the pay band may include multiple competitive 
levels.
    For example, a pay band includes positions traditionally classified 
from GS-4 through GS-7. If the employees' official positions are 
identical (i.e., identical positions are always interchangeable), the 
pay band includes one competitive level with one representative rate 
even though employees' actual salaries may vary under the agency's pay 
band compensation system. If the pay band includes three official 
positions that are not interchangeable under the competitive level 
provisions of paragraphs (a)(1) through (4) of Sec.  351.403, the pay 
band includes three competitive levels with the agency determining the 
appropriate representative rate for each level.
    New paragraph (c)(5) of Sec.  351.403 provides that an agency does 
not establish separate reduction in force competitive levels solely on 
the basis of a difference in GS locality payments under 5 U.S.C. 5304 
when a competitive level includes more than one locality pay area 
listed in Sec.  531.603 of this chapter. If a competitive area includes 
more than one local commuting area covering more than one locality pay 
area, the agency establishes GS competitive levels on the basis of the 
representative rates for one local commuting area and locality pay area 
within the competitive area. For example, if a competitive area 
includes GS positions in both Norfolk and Richmond, Virginia, the 
agency would decide whether to establish GS competitive levels on the 
basis of the representative rate in Norfolk or the rate in Richmond.
    Current paragraph (c)(4) of Sec.  351.403 contains a comparable 
provision for FWS positions. Revised paragraph (c)(4) clarifies this 
provision. For example, if a competitive area includes FWS positions in 
both Pensacola, Florida, and Gulfport, Mississippi, the agency would 
decide whether to establish FWS competitive levels on the basis of the 
representative rate in Pensacola or the rate in Gulfport.
    New paragraph (c)(6) of Sec.  351.403 provides that if a 
competitive area includes more than one local commuting area, the 
agency uses the same local commuting area to establish competitive 
levels under paragraphs (c)(4) (FWS positions) and (c)(5) (GS 
positions) of Sec.  351.403. In the example with Norfolk and Richmond, 
the agency would decide whether to establish all its competitive levels 
on the basis of representative rates in Norfolk, or the rates in 
Richmond. The agency may not use one local commuting area in the 
competitive area to establish representative rates for one pay schedule 
(e.g., GS), and a different local commuting area in the competitive 
area to establish representative rates for a different pay schedule 
(e.g., FWS) used in the same reduction in force.

Release From the Competitive Level

    In Sec.  351.601, current paragraph (b) is redesignated paragraph 
(c), paragraph (a) is revised, and new paragraph (b) is added.
    Revised paragraph (a) of Sec.  351.601 clarifies that the agency 
releases employees from a pay band in the same inverse order of 
retention standing that the agency releases other employees from a 
competitive level. New paragraph (b) of Sec.  351.601 clarifies 
longstanding policy that, at its option, an agency may provide for 
intervening displacement within the competitive level before final 
release of the employee with the lowest-retention standing from the 
competitive level.

Assignment Rights

    In Sec.  351.701, paragraph (a) is revised and new paragraphs (g), 
(h), and (i) are added.
    New paragraph (g) of Sec.  351.701 provides that if a competitive 
area includes more than one local commuting area, the agency determines 
released employees' assignment rights on the basis of the 
representative rates for the one local commuting area within the 
competitive area that the agency used to establish competitive levels 
under 5 CFR 351.403(c)(4), (5), and (6).
    New paragraph (h) explains how the agency determines a released 
employee's assignment rights when all positions in a competitive area 
are pay band positions. A released employee has a potential assignment 
right to a position in an equivalent pay band or one pay band lower. A 
preference eligible with a service-connected disability of 30 percent 
or more has a potential assignment right to a position in an equivalent 
pay band or no more than two pay bands lower. The agency is responsible 
for determining the scope of assignment rights to other pay bands.
    New paragraph (i) explains how the agency determines a released 
employee's assignment rights when a competitive area includes pay band 
positions and other positions not covered by a pay band. After the 
agency determines the representative rates of (1) positions not covered 
by a pay band (in new (i)(1)) and (2) positions covered by a pay band 
(in new paragraph (i)(2)), new paragraph (i)(3) provides that the 
agency applies the representative rate of each pay band position to 
positions not covered by a pay band to determine the potential 
assignment rights of employees released by reduction in force from pay 
band positions.
    For example, an agency has a pay band that includes positions 
traditionally classified from GS-4 through GS-7. The employees' 
official positions are identical and are otherwise interchangeable for 
purposes of the competitive level provisions in 5 CFR 351.403(a). Under 
new paragraph (a)(5) of 5 CFR 351.403, the pay band comprises one 
competitive level with one representative rate even though employees' 
actual salaries may vary. The agency would then use the representative 
rate of the pay band to determine whether employees in positions not 
included in a pay band have potential assignment rights to positions in 
the pay band. The agency would also use the representative rate of the 
pay band to determine whether pay band employees have potential

[[Page 12124]]

assignment rights to positions not included in the pay band.
    For a second example, an agency again has a pay band that includes 
positions traditionally classified from GS-4 through GS-7. This time, 
the pay band includes three different official positions with different 
salaries. Under new paragraph (a)(5) of Sec.  351.403, the agency finds 
that the pay band includes three competitive levels, each with its own 
representative rate. The agency would then use each of the three 
representative rates of the competitive levels within the pay band to 
determine whether employees in positions not included in a pay band 
have potential assignment rights to positions in the pay band. The 
agency would also use the representative rates of the pay band to 
determine whether pay band employees have potential assignment rights 
to positions not included in the pay band.

Regulatory Flexibility Act

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

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 5 CFR Part 351

    Administrative practice and procedure, Government employees.

    Office of Personnel Management.
Linda M. Springer,
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. In Sec.  351.203, the definition of representative rate is 
revised to read as follows:


Sec.  351.203  Definitions.

    In this part:
* * * * *
    Representative rate means:
    (1) The fourth step of the grade for a position covered by the 
General Schedule, using the locality rate authorized by 5 U.S.C. 5304 
and subpart F of part 531 of this chapter for General Schedule 
positions;
    (2) The prevailing rate for a position covered by a wage-board or 
similar wage-determining procedure;
    (3) For positions in a pay band, the rate (or rates) the agency 
designates as representative of that pay band or competitive levels 
within the pay band, including (as appropriate) any applicable locality 
payment authorized by 5 U.S.C. 5304 and subpart F of part 531 of this 
chapter (or equivalent payment under other legal authority); and
    (4) For other positions (e.g., positions in an unclassified pay 
system), the rate the agency designates as representative of the 
position, including (as appropriate) any applicable locality payment 
authorized by subpart F of part 531 (or equivalent payment under other 
legal authority).
* * * * *
    3. In Sec.  351.403, paragraph (c)(4) is revised, and paragraphs 
(a)(5), (c)(5), and (c)(6) are added, to read as follows:


Sec.  351.403  Competitive Level.

    (a) * * *
    (5) If a competitive area includes positions in one or more pay 
bands, each set of interchangeable positions in the pay band under 
paragraphs (a)(1) through (4) of this section is a separate competitive 
level (e.g., with interchangeable positions under paragraphs (a)(1) 
through (4) of this section, each pay band is one competitive level; if 
the positions are not interchangeable under paragraphs (a)(1) through 
(4) of this section, the pay band may include multiple competitive 
levels).
* * * * *
    (c) * * *
    (4) A difference in the local wage areas when a competitive area 
includes positions covered by more than one wage-board or similar wage-
determining procedure;
    (5) A difference in locality payments under 5 U.S.C. 5304 and 
subpart F of part 531 of this chapter when a competitive level includes 
more than one locality pay area listed in Sec.  531.603 of this 
chapter; or
    (6) Representative rates in different local commuting areas when a 
competitive area includes General Schedule and wage grade positions in 
multiple General Schedule locality pay areas, and/or FWS local wage 
areas.
    4. Section 351.601 is revised to read as follows:


Sec.  351.601  Order of release from competitive level.

    (a) Each agency must select competing employees for release from a 
competitive level (including release from a competitive level involving 
a pay band) under this part in the inverse order of retention standing, 
beginning with the employee with the lowest retention standing on the 
retention register. An agency may not release a competing employee from 
a competitive level while retaining in that level an employee with 
lower retention standing except:
    (1) As required under Sec.  351.606 when an employee is retained 
under a mandatory exception or under Sec.  351.806 when an employee is 
entitled to a new written notice of reduction in force; or
    (2) As permitted under Sec.  351.607 when an employee is retained 
under a permissive continuing exception or under Sec.  351.608 when an 
employee is retained under a permissive temporary exception.
    (b) At its option an agency may provide for intervening 
displacement within the competitive level before final release of the 
employee with the lowest-retention standing from the competitive level.
    (c) When employees in the same retention subgroup have identical 
service dates and are tied for release from a competitive level, the 
agency may select any tied employee for release.
    5. In section 351.701, paragraphs (g), (h), and (i) are added, to 
read as follows:


Sec.  351.701  Assignment involving displacement.

* * * * *
    (g) If a competitive area includes more than one local commuting 
area, the agency determines assignment rights under this part on the 
basis of the representative rates for one local commuting area within 
the competitive area (i.e., the same local commuting area used to 
establish competitive levels under Sec.  351.403(c)(4), (5), and (6)).
    (h) If a competitive area includes positions under one or more pay 
bands, a released employee shall be assigned in accordance with 
paragraphs (a) through (d) of this section to a position in an 
equivalent pay band or one pay band lower, as determined by the agency, 
than the pay band from which released. A preference eligible with a 
service-connected disability of 30 percent or more must be assigned in 
accordance with paragraphs (a) through (d) of this section to a 
position in an equivalent pay band or up to two pay bands lower, as 
determined by the agency, than the pay band from which released.
    (i) If a competitive area includes positions under one or more pay 
bands, and other positions not covered by a pay band (e.g., GS and/or 
FWS positions),

[[Page 12125]]

the agency provides assignment rights under this part by:
    (1) Determining the representative rate of positions not covered by 
a pay band consistent with Sec.  351.203;
    (2) Determining the representative rate of each pay band, or 
competitive level within the pay band(s), consistent with Sec.  
351.203;
    (3) As determined by the agency, providing assignment rights under 
paragraph (b) of this section (bumping), or paragraphs (c) and (d) of 
this section (retreating), consistent with the grade intervals covered 
in paragraphs (b)(2) and (c)(2) of this section, and the pay band 
intervals in paragraph (h) of this section.

 [FR Doc. E7-4701 Filed 3-14-07; 8:45 am]
BILLING CODE 6325-39-P