Reduction in Force Retreat Right

SUMMARY: The Office of Personnel Management is issuing interim

retention regulations that clarify existing policy on employees'

``Retreat'' rights. These interim regulations also clarify existing

policy concerning the content of specific written reduction in force

notices, and issuance of a Certification of Separation.

DATES: These interim regulations are effective August 25, 1995. Written

comments will be considered if received no later than October 24, 1995.

ADDRESSES: Send written comments to Leonard R. Klein, Associate

Director for Employment Service, Office of Personnel Management, Room

6F08, 1900 E Street, NW, Washington, DC 20415.

FOR FURTHER INFORMATION CONTACT: Thomas A. Glennon or Edward P. McHugh,

202-606-0960, FAX 202-606-2329.

SUPPLEMENTARY INFORMATION:

Assignments Rights--General

Reduction in force assignment rights are covered in subpart 351-G

of title 5, Code of Federal Regulations. A competing employee in

retention tenure Groups I and II with current performance ratings of at

least ``Minimally Successful'' who has been released from a competitive

level is entitled to an offer of assignment under the ``retention

regulations if the employee has ``Bumping'' or ``Retreating'' rights to

an available position in the same competitive area. The available

position must be within three grades or grade-intervals (or equivalent)

of the employee's present position. However, an employee who is

eligible for veterans' preference under the retention regulations, and

who has a service-connected disability of 30 percent or more, has a

retreat right to positions up to five grades or grade-intervals (or

equivalent) of the employee's present position.

Assignment Rights--Bumping

5 CFR 351.701(b) covers employee ``Bump'' rights. ``Bumping'' means

displacing an employee in a lower tenure group, or in a lower subgroup

within the released employee's own tenure group. Although the released

employee must be qualified for the position, it may be a position that

the employee has never held.

Assignment Rights--Retreating

5 CFR 351.701 (c) and (d) cover ``Retreat'' rights. ``Retreating''

means displacing an employee with less service within the released

employees own tenure group and subgroup (i.e., a limited form of

bumping within the same retention group and subgroup). 5 CFR

351.701(c)(3) provides that the position must also be the same position

or essentially identical to a position held by the released employee in

a Federal agency.

An employee with a current annual performance rating of ``Minimally

Successful'' has retreat rights only to a position held by an employee

with the same or a lower rating.

5 CFR 351.701(c)(3) is revised to provide that, for purposes of

determining an employee's retreat rights, a position is considered

essentially identical to one previously held (1) if the employee held

the previous position on a permanent basis, and (2) the agency

determines on the basis of available information that the two positions

are otherwise interchangeable under the competitive level criteria

found in section 5 CFR 351.403, but without regard to the respective

grade, classification series, type of work schedule, or type of

service, of the two positions. In short, an employee has the right to

retreat if the employee's former position and a position held by a

lower-standing employee are interchangeable under the competitive level

standard found in 5 CFR 351.403 on the basis of the duties,

responsibilities, and qualification, even if the two positions differ

in regard to grade, classification series, type of work schedule, or

type of service.

Examples

Example number 1: A GS-7 employee formerly held a GS-322-5

position. Because of a new classification standard, the GS-322-5 is

reclassified to a GS-326-5 with no change in duties, responsibilities,

and qualifications. This regulation clarifies that the GS-7 employee

would have a right to retreat to the GS-326-5 position held by a lower-

standing employee if the agency determines that the employee's former

GS-322-5 position and the GS-326-5 position are otherwise essentially

identical using the competitive level test found in 5 CFR 351.403.

Example number 2: A WG-4204-10 employee formerly held a WG-4204-7

position. Because of classification error, the WG-4204-7 position is

reclassified to a WG-4204-8 with no change in duties, responsibilities,

and qualifications. This regulation clarifies that the WG-4204-10

employee would have a right to retreat to the WG-4204-8 position held

by a lower-standing employee if the agency determines that the

employee's former WG-4204-7 position and the WG-4204-8 position are

otherwise essentially identical using the competitive level test found

in 5 CFR 351.403.

Example number 3: A full-time GS-343-11 employee formerly held a

part-time GS-343-7 position. This regulation clarifies that the full-

time GS-343-11 employee would have a right to retreat to a full-time

GS-343-7 held by a lower-standing employee if the agency determines

that the employee's former part-time GS-343-7 position and the GS-343-7

position are otherwise essentially identical using the competitive

level test found in 5 CFR 351.403.

Example number 4: A GS-334-11 competitive service employee formerly

held a GS-334-7 position under an excepted service Veterans

Readjustment Appointment (VRA). This regulation clarifies that the GS-

343-11 employee would have a right to retreat to a GS-343-7 position

held by a lower-standing competitive service employee if the agency

determines that the employee's former GS-334-7 VRA position and the

[[Page 44254]]

GS-334-7 position are otherwise essentially identical using the

competitive level test found in 5 CFR 351.403.

Reduction in Force Notices

5 U.S.C. 3502(d)(1) provides that an agency must give each employee

a minimum of 60 days specific written notice before effecting a

reduction in force action. Pub. L. 102-484 provided that each employee

of the Department of Defense is entitled to a minimum of 120 days

specific written notice when a significant number of employees will be

separated during the period from January 20, 1993, through January 31,

1998.

Section 911(a) of Pub. L. 103-337 extended the window period for

the 120 days specific written notice applicable to the Department of

Defense to cover the period from January 20, 1993, through January 31,

2000. 5 CFR 351.801(a)(2) is revised to include this statutory change.

5 U.S.C. 3502(d)(2)(A) provides that an agency must cover in a

specific reduction in force notice the personnel action that is being

taken. 5 CFR 351.802(a)(1) is revised to provide that a specific

reduction in force notice must cover the action to be taken, the

effective date of the action, and the reasons for the action.

Certification of Expected Separation

5 CFR 351.807 provides that an agency may issue a Certification of

Expected Separation to employees likely to be separated by reduction in

force within 6 months. 5 CFR 351.807(b) covers the conditions under

which an agency may issue a Certification. In final regulations

published on January 11, 1995, at 60 FR 2677, the word ``or''

inadvertently followed 5 CFR 351.807(b)(3) rather than the word

``and,'' which was used in interim regulations published on June 27,

1994, at 59 FR 32873. 5 CFR 351.807 is revised to provide that ``and''

again follows 5 CFR 351.807(b)(3), consistent with the interim

regulations.

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 food cause exists to make

this amendment effective in less than 30 days. The delay in the

effective date is being waived to clarify OPM's retention regulations

as agencies undertake potential downsizing actions and to give effect

to the benefits extended by the amended provisions 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 affects

only certain Federal employees.

List of Subjects in 5 CFR Part 351

Administrative practice and procedure, Government employees.

U.S. Office of Personnel Management.

James B. King,

Director.

Accordingly, OPM is amending 5 CFR part 351 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, Section 351.801 also

issued under E.O. 12828, 58 FR 2965.

2. In Sec. 351.701, paragraph (c)(3) is revised to read as follows:

Sec. 351.701 Assignment involving displacement.

* * * * *

(c) * * *

(3) Is the same position, or an essentially identical position,

held by the released employee on a permanent basis in a Federal agency.

(In determining whether a position is essentially identical, the

determination is based on the competitive level criteria found in 5 CFR

351.403, but not necessarily in regard to the respective grade,

classification series, type of work schedule, or type of service, of

the two positions.)

* * * * *

3. In Sec. 351.801, paragraph (a)(2) is revised to read as follows:

Sec. 351.801 Notice period.

(a) * * *

(2) Under authority of section 4433 of Pub. L. 102-484, as amended

by section 911(a) of Pub. L. 103-337, each competing employee of the

Department of Defense is entitled, under implementing regulations

issued by that agency to a specific written notice at least 120 full

days before the effective date of release when a significant number of

employees will be separated by reduction in force. The 120 days notice

requirement is applicable during the period from January 20, 1993,

through January 31, 2000. The basic requirement for 60 full days

specific written notice set forth in paragraph (a) of this section is

still applicable when less than a significant number of employees will

be separated by reduction in force.

* * * * *

4. In Sec. 351.802, paragraph (a)(1) is revised to read as follows:

Sec. 351.802 Content of notice.

(a)(1) The action to be taken, the reasons for the action, and its

effective date;

* * * * *

5. In Sec. 351.807, paragraph (b)(3) is revised to read as follows:

Sec. 351.807 Certification of expected separation.

* * * * *

(b) * * *

(3) Placement opportunities within the employee's own or other

Federal agencies in the local commuting area are limited or

nonexistent; and

* * * * *

[FR Doc. 95-21019 Filed 8-24-95; 8:45 am]

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