[Federal Register: October 20, 2000 (Volume 65, Number 204)]
[Rules and Regulations ]
[Page 62991-62992]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20oc00-1]
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Rules and Regulations
Federal Register
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This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations , which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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[[Page 62991]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 351
RIN 3206-AJ14
Reduction in Force Retreat Rights
AGENCY: Office of Personnel Management.
ACTION: Interim rule with request for comments.
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SUMMARY: The Office of Personnel Management is issuing an interim
retention regulation that clarifies a released employee's potential
right to ``Retreat'' to another position in a reduction in force. This
regulation states that an agency determines the potential grade range
of a released employee's retreat right solely upon the position held by
the employee on the effective date of the reduction in force rather
than the grade range of the position to which the employee may have a
right to retreat.
DATES: This regulation is effective on October 20, 2000. Written
comments will be considered if received no later than December 19,
2000.
ADDRESSES: Send written comments to Carol J. Okin, Associate Director
for Employment, Office of Personnel Management, Room 6F08, 1900 E
Street, NW., Washington, DC 20415.
FOR FURTHER INFORMATION CONTACT: Thomas A. Glennon or Jacqueline R.
Yeatman, 202-606-0960, FAX 202-606-2329.
SUPPLEMENTARY INFORMATION:
Purpose of This Interim Retreat Regulation
This interim regulation clarifies OPM 's longstanding policy that an
agency determines the grade or grade-interval range of a released
employee's potential retreat rights solely on the basis of the official
position of record held by the employee on the effective date of the
reduction in force. See 51 FR 319 (January 3, 1986). In determining an
employee's potential retreat rights, an agency does not consider the
grade or grade-interval range of the position to which the employee may
have a retreat right.
OPM is publishing this interim regulation in response to a January
28, 2000, decision by the United States Court of Appeals for the
Federal Circuit in Henderson v. Department of the Interior, 202 F.3d
1356 (Fed. Cir. 2000). In Henderson, the Court interpreted our
regulations as meaning something different from what OPM had intended.
As a result, the Court found that an agency determines an employee's
potential retreat right, in part, on the basis of the grade or grade-
interval range of the position to which the employee may have a right
to retreat. This new interim regulation reinforces OPM 's intent that an
agency determines an employee's potential retreat rights only on the
basis of the employee's current official position of record.
Employees' Retreat Rights
Section 351.603 of OPM 's retention regulations provides that a
permanent competitive service employee who is released from a
competitive level as the result of reduction in force competition has a
potential ``Bump'' or ``Retreat'' right to other continuing positions
before involuntary separation. For reference, OPM published a
comprehensive history and explanation of the retreat right in the
Supplementary Information section of final regulations that were
published in the Federal Register on June 15, 1998, at 63 FR 32593.
Consideration of Grade Limits in Determining Employees' Retreat
Rights
OPM 's reduction in force regulations generally limit the grade
limits of an employee's potential bump and retreat rights to positions
that are within, as appropriate, three grades or grade-intervals of the
official position held on the effective date of the reduction in force.
In addition, a preference eligible employee who competes under OPM 's
retention regulations in retention tenure subgroup I-AD on the basis of
a service-connected compensable disability of 30% (or higher) has a
potential retreat right to positions that are within, as appropriate,
five grades or grade intervals of the official position held on the
effective date of the reduction in force.
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 provided
by law. Also, pursuant to 5 U.S.C. 553(d)(3), I find that good cause
exists to waive the effective date and make this amendment effective in
less than 30 days in order to provide eligible displaced employees with
the full benefit of their retreat rights 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.
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; sec. 351.801 also issued
under E.O. 12828, 58 FR 2965.
2. Section 351.701(c) is revised to read as follows:
Sec. 351.701 Assignment involving displacement.
* * * * *
(c) Same subgroup-retreating. A released employee shall be assigned
in accordance with paragraphs (a) and (d) of this section and retreat
to a position that:
[[Page 62992]]
(1) Is held by another employee with lower retention standing in
the same tenure group and subgroup; and
(2) Is not more than three grades (or appropriate grade intervals
or equivalent) below the position from which the employee was released,
except that for a preference eligible employee with a compensable
service-connected disability of 30 percent or more the limit is five
grades (or appropriate grade intervals or equivalent). (The agency uses
the grade progression of only the released employee's position of
record to determine the applicable grades (or appropriate grade
intervals or equivalent) of the employee's retreat right. The agency
does not consider the grade progression of the position to which the
employee has a retreat right.); and
(3) Is the same position, or an essentially identical position,
formerly held by the released employee on a permanent basis 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.
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[FR Doc. 00-26945 Filed 10-19-00; 8:45 am]
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