[Federal Register Volume 73, Number 73 (Tuesday, April 15, 2008)]
[Proposed Rules]
[Pages 20180-20181]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-7968]


 ========================================================================
 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. 73, No. 73 / Tuesday, April 15, 2008 / 
Proposed Rules  

[[Page 20180]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 351

RIN 3206-AL64


Competitive Area

AGENCY: Office of Personnel Management.

ACTION: Proposed rule with request for comments.

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SUMMARY: The U.S. Office of Personnel Management (OPM) is issuing 
proposed regulations that provide agencies with the option of 
establishing a reduction in force (RIF) competitive area comprised only 
of pay band positions. An agency would have this option only when the 
competitive area would otherwise include pay band positions and other 
positions not covered by a pay band system.

DATES: We will consider comments received on or before May 15, 2008.

ADDRESSES: You may submit comments, identified by RIN 3206-AL64, 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-AL64'' in the 
subject line of the message.
     Fax: (202) 606-2329.
     Mail: Angela Bailey, 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: Michael J. Mahoney 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: Section 351.402(b) of OPM's regulations 
presently provides that an agency must define a RIF competitive area 
solely on the basis of the agency's organizational unit(s) and 
geographical location. Once defined, the competitive area includes all 
employees covered by that definition.
    OPM is adding new section 351.402(e) to provide that when a 
competitive area defined under section 351.402(b) includes both pay 
band positions and positions not covered by a pay band, the agency may, 
at its discretion, define a competitive area, that is otherwise 
consistent with section 351.402(b), to include either only pay band 
positions or only positions not covered by a pay band system. In a 
related change, OPM is revising section 351.403(a)(2) to clarify how an 
agency establishes RIF competitive levels for pay band positions and 
for other positions.

Explanation

    OPM's regulations cover RIF competition involving positions under 
different pay schedules. For example, section 351.203 includes the RIF 
definition of ``Representative Rate'' for traditional General Schedule 
(GS) and Federal Wage System (FWS) positions, and for alternative pay 
schedule positions (e.g., pay band, unclassified, and negotiated rate 
positions). The RIF regulations also cover how an agency determines the 
retention standing of employees in GS/FWS positions and in positions 
with an alternative pay schedule.
    In a recent review of the RIF regulations, and as more and more 
agencies move portions of their workforces into alternative systems, 
OPM found that significant inconsistencies may result when a RIF 
competitive area includes pay band positions and positions covered by 
the General Schedule (GS) or Federal Wage System (FWS). For example, a 
pay band personnel system may also include specific staffing, 
classification, pay, and performance management provisions that differ 
significantly from the GS and/or FWS system. These distinctions between 
pay band and other positions could be magnified when all of the 
positions are included in the same RIF competitive area.
    To establish a RIF competitive level to determine which employee is 
released from the present position, section 351.403(a)(2) provides that 
the agency use the official position description that documents the 
duties, responsibilities, and qualifications tied to each competing 
employee's official position of record. Consistent with the 
regulations, a RIF competitive level for GS or FWS employees only 
includes interchangeable positions having the same grade, 
classification series, work schedule, type of service (e.g., 
competitive or excepted), and additional criteria covered in section 5 
CFR 351.403. However, in a pay band system a single pay band may 
combine multiple grades and classification series that are documented 
on a single generic official position description. In operation, the 
agency may, and in some cases does, supplement this position 
description with other documentation to distinguish actual work 
assignments among the pay band positions. A separate competitive area 
for pay band positions eliminates the requirement to create position 
descriptions that must conform to those in another personnel system 
(e.g., GS and/or FWS).
    Sections 351.701(b) and (c) provide that a GS or FWS competitive 
service employee has potential ``bump'' and ``retreat'' rights to 
positions in the competitive area that are no more than three grades or 
grade-intervals below the employee's official position of record. 
Section 351.701(c) also provides a preference eligible with a 
compensable service-connected disability of 30% or more with a 
potential retreat right of up to five grades or grade-intervals from 
the employee's official position of record. However, the compensation 
architecture of a pay band system does not equate efficiently to the 
grade/grade-interval structure used to determine the assignment rights 
of GS or FWS employees. These differences may make it difficult for an 
agency to determine equivalent assignment rights from pay band to GS/
FWS positions or vice versa. A separate competitive area for pay band 
positions eliminates these difficulties in determining the potential 
assignment rights of pay band and GS/FWS employees who are released 
from a retention register by RIF and makes it easier to make 
comparisons.

Revisions to Competitive Level

    Section 351.403(a)(2) is renumbered as section 351.403(a)(2)(i) and 
revised to clarify that, except as provided in new section 
351.403(a)(2)(ii) for pay band positions, competitive level 
determinations are based on each employee's official position of record

[[Page 20181]]

(including the official position description), not the employee's 
personal qualifications.
    New section 351.403(a)(2)(ii) provides that to establish a 
competitive level comprised of pay band positions, an agency may 
supplement an employee's official position description with other 
applicable records that document the employee's actual duties and 
responsibilities.

Revisions to Competitive Area

    New section 351.402(e) provides that when a competitive area 
defined under section 351.402(b) includes pay band positions and 
positions not covered by a pay band, the agency may, at its discretion, 
define a competitive area otherwise consistent with section 351.402 to 
include only pay band positions. Section 351.402(b) is revised to 
include a reference to new section 351.402(e).

Examples of Separate Competitive Area for Pay Band Positions

Example 1

    Under section 351.402(b) an agency defines its activities in 
Memphis and Vicksburg to be in the same competitive area. At present 
this competitive area would include GS, FWS, and pay band positions.
    At its option the agency may apply new section 351.402(e) and 
define a separate competitive area that includes only its pay band 
positions in Memphis and Vicksburg. Under section 351.402(e), the 
competitive area for pay band positions must otherwise conform to 
section 351.402(b), that is, be based on the same organizational unit 
and geographical location as the remaining positions (i.e., the GS and 
FWS positions in the original competitive area).

Example 2

    Under current regulations, an agency defines its headquarters to be 
one competitive area that includes GS, FWS, and pay band positions.
    At its option the agency may apply new section 351.402(e) and 
define a separate competitive area that includes only its pay band 
positions in the headquarters. Under section 351.402(e) the competitive 
area for pay band positions must still be based on the same 
organizational unit and geographical location as the remaining 
positions, that is the GS and FWS positions that were in the original 
competitive area (the entire headquarters).

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.  351.402, paragraph (b) is revised, and paragraph (e) is 
added, 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, except 
as provided in paragraph (e) of this section, 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.
* * * * *
    (e) When a competitive area defined under paragraph (b) of this 
section includes pay band positions and positions not covered by a pay 
band, the agency may, at its discretion, define a separate (and 
additional) competitive area, otherwise consistent with paragraph (b) 
of this section, to include only pay band positions. The original 
competitive area would then include only the remaining positions, i.e., 
those positions not covered by a pay band.
    3. In Sec.  351.403, paragraph (a)(2) is revised to read as 
follows:


Sec.  351.403  Competitive level.

    (a) * * *
    (2)(i) Except as provided in paragraph (a)(2)(ii) of this section 
for pay band positions, competitive level determinations are based on 
each employee's official position of record (including the official 
position description), not the employee's personal qualifications.
    (ii) To establish a competitive level comprised of pay band 
positions, an agency may supplement an employee's official position of 
record with other applicable records that document the employee's 
actual duties and responsibilities.
* * * * *
 [FR Doc. E8-7968 Filed 4-14-08; 8:45 am]
BILLING CODE 6325-39-P