Reduction in Force Retreat Right

OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 351

RIN 3206-AG77

Reduction in Force Retreat Right

AGENCY: Office of Personnel Management.

ACTION: Final rulemaking.

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SUMMARY: The Office of Personnel Management (OPM) is issuing final

regulations that clarify employees' ``Retreat'' rights. These final

regulations also clarify the content of specific reduction in force

notices.

DATES: These regulations are effective July 15, 1998.

FOR FURTHER INFORMATION CONTACT: Thomas A. Glennon or Jacqui R.

Yeatman, (202) 606-0960, FAX (202) 606-2329.

SUPPLEMENTARY INFORMATION:

Background

On August 25, 1995, OPM published interim retention regulations (60

FR 44254) that clarified the procedures agencies use to determine

employees' rights to ``retreat'' to positions during a reduction in

force. These regulations also clarified what information agencies must

provide employees who receive a specific notice of reduction in force.

Interested parties could provide OPM with written comments during the

period covering 60 days from the date of publication.

Comments

OPM received seven comments on the retreat right provisions found

in these interim regulations: four from agencies, and three from

individual employees. OPM did not receive any comments on the revised

notice provisions of the regulations.

One agency supported the regulations as written. Two agencies

suggested that OPM further clarify how agencies determine employees'

retreat rights in specific situations. The fourth agency suggested that

OPM limit employees' retreat rights only to positions that the present

agency can readily document (i.e., positions in the employee's present

agency).

Of the three comments from individual employees, two employees

suggested that OPM provide additional material covering how agencies

determine retreat rights, while the third employee believed that the

interim regulations expanded rather than clarified employees' retreat

rights.

The agency comment suggesting that the retreat right be redefined

to provide a more restrictive standard was not adopted.

The comments from two of the agencies and all three of the

employees asking for clarification of how agencies determine retreat

rights are reflected in the following material that explains the scope

and purpose of these final regulations on retreat.

Final Regulations-Retreat Rights

OPM is now publishing final retention regulations that further

clarify employees' retreat rights. Final Sec. 351.701(c)(3) provides

that an employee has the right to retreat to the same position, or an

essentially identical position, formerly held by the released employee

on a permanent basis in a Federal agency. Final Sec. 351.701(c)(3)

further clarifies that the agency determines an employee's retreat

right based only on former positions in any Federal agency that the

released employee held as a competing employee, or equivalent (i.e.,

when held by the released employee, the position would have been placed

in tenure group I, II, or III, or equivalent).

In defining what constitutes ``an essentially identical position''

for this purpose, final Sec. 351.701(c)(3) still provides that in

determining whether a position is essentially identical, the agency

uses the competitive level criteria found in Sec. 351.403, but without

regard to the respective grade, classification series, type of work

schedule, or type of service, of the two positions. Consistent with

OPM's interpretation of its own regulations, this reflects the

longstanding history of retreat as a narrow right of same subgroup

bumping limited to actual positions formerly held by a released

employee, rather than a broader form of same subgroup bumping based

upon a return to the same general occupation based upon personal

qualifications for that position.

Effective August 22, 1947, the retreat right was originally

incorporated in 5 CFR part 20.9 of the former U.S. Civil Service

Commission's retention regulations. In 1954 the Commission began to use

the term ``retreat'' in referring to this form of same subgroup bumping

that was limited to positions from which, or in the same line of work

through which, a released employee had previously been promoted.

The retreat right was based upon the assumption that a released

employee who was so successful in performing a prior position that the

employee was promoted to another position should be allowed to return

to the former position if (1) the former position was substantially the

same, and (2) because of higher same subgroup retention standing than

the present incumbent of the position, the released employee would not

be released from the retention register that includes the former

position.

In final regulations published by OPM on January 3, 1986 (51 FR

319), the retreat right was expanded to include positions held on a

permanent basis in the Federal service by the released employee without

regard to whether the employee was promoted from that position (i.e.,

the retreat right now includes positions vacated because of

reassignment and transfer). Consistent with this expansion of retreat

rights, the January 3, 1986, revision also excludes positions that were

simply in the same line of work through which a released employee had

previously been promoted, but which the employee had not actually held.

These final retention regulations intend that agencies use a narrow

modified competitive level standard set forth in Sec. 351.701(c)(3) to

determine an employee's retreat rights to an essentially identical

position. This is consistent with OPM's as well as the former

Commission's, longstanding definition of the competitive level as the

basic standard for retreat rights. Also, this revision addresses the

issue of what constitutes an ``essentially identical'' position in the

wake of the decisions of the Merit Systems Protection Board in

Parkhurst v. Department of

[[Page 32594]]

Transportation, 70 M.S.P.R. 309 (1995), and Pigford v. Department of

the Interior, 75 M.S.P.R. 251 (1996).

Because retreat is a narrow right, Sec. 351.701(c)(3) does not

intend to provide a more disruptive, broader range of same subgroup

bumping that, based upon personal qualifications, would provide a

released employee with the right to displace a lower-standing employee

solely because the released employee formerly held a position in the

same general line of work.

At its discretion, an agency may provide a broader assignment

opportunity to released employees that is primarily based on the

personal qualifications set forth in section 351.702(a). However, this

alternative is not applicable to a determination of an employee's

retreat rights under authority of Sec. 351.701(c).

As requested in several comments on the interim regulations, the

following four examples of retreat rights are reprinted from the

Supplementary Information material in the interim retention regulations

that OPM published on August 25, 1995 (60 FR 44254).

Examples of Retreat Rights

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-

334-11 employee would have a right to retreat to a GS-334-7 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 GS-

334-7 position are otherwise essentially identical using the

competitive level test found in 5 CFR 351.403.

Final Regulations--Reduction in Force Notices

OPM is publishing final regulations on reduction in force notices

with revision only to an applicable section of statute cited in

Sec. 351.801(a)(2). Section 351.801(a)(2) provides that, from January

20, 1993, through January 31, 2000, 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 from a competitive area by reduction in

force. This provision is consistent with section 341(a) of Pub. L. 103-

337. (Sec. 351.801(a)(2) had contained a reference to section 911(a) of

Pub. L. 103-337.)

Section 351.802(a)(1) provides 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. This provision is consistent

with statutory requirements set forth in 5 U.S.C. 3502(d)(2)(A).

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.

Janice R. Lachance,

Director.

Accordingly, OPM is amending 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, 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,

formerly held by the released employee as a competing employee in a

Federal agency (i.e., when held by the released employee in an

executive, legislative, or judicial branch agency, the position would

have been placed in tenure groups I, II, or III, or equivalent). In

determining whether a position is essentially identical, the

determination is based on the competitive level criteria found in

Sec. 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 341(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:

[[Page 32595]]

Sec. 351.802 Content of notice.

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

effective date;

* * * * *

[FR Doc. 98-15860 Filed 6-12-98; 8:45 am]

BILLING CODE 6325-01-P