[Federal Register: August 14, 1998 (Volume 63, Number 157)]
[Proposed Rules]
[Page 43640-43641]

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OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 351

RIN 3206-AI09

Reduction in Force Service Credit; Retention Records

AGENCY: Office of Personnel Management.

ACTION: Proposed rulemaking.

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SUMMARY: The Office of Personnel Management (OPM) is proposing
regulations that cover service credit for retention purposes. These
proposed regulations also cover access to retention records by
employees and their representatives.

DATES: Written comments will be considered if received no later than
October 13, 1998.

ADDRESSES: Send or deliver written comments to: Associate Director for
Employment Service, Room 6F08, Office of Personnel Management,
Washington, DC 20415.

FOR FURTHER INFORMATION CONTACT: Thomas A. Glennon or Jacqui R. Yeatman
at (202) 606-0960, FAX (202) 606-2329.

SUPPLEMENTARY INFORMATION:

Background

    OPM's retention regulations found in part 351 are published under
authority of 5 U.S.C. 3502(a). The statute provides that OPM's
reduction in force regulations must give effect to four factors in
releasing employees: (1) tenure of employment (i.e., type of
appointment); (2) veterans' preference; (3) length of service; and (4)
performance ratings.
    These proposed regulations cover the crediting of civilian and
uniformed service for purposes of reduction in force competition under
part 351 of this title. Specifically, these regulations clarify
longstanding OPM policy on what types of service are creditable when an
agency establishes the order of retention for competing employees in a
reduction in force.
    These regulations are further implemented through instructions
found in the OPM Operating Manual, ``The Guide to Processing Personnel
Actions,'' Chapter 6, ``Determining Creditable Service and Determining
Service Computation Dates (SCD's).''
    These proposed regulations also cover who has access to reduction
in force retention records, when that access is available, and what
records are available for review.

Service Credit

    Proposed Sec. 351.503(a) provides that all civilian service as a
Federal employee, as defined in 5 U.S.C. 2105(a), is creditable for
purposes of determining the reduction in force rights of a competing
employee. Civilian service that does not meet the definition set forth
in 5 U.S.C. 2105(a) would be creditable for retention purposes only if
specifically authorized by statute.
    Proposed Sec. 351.503(b)(1) notes that, except as provided in
Sec. 351.501(b)(2) and (b)(3), all active duty in a uniformed service,
as defined in 5 U.S.C. 2101(3), is creditable for purposes of
determining employees' retention rights.
    Consistent with 5 U.S.C. 3502(a)(A) and (b), a retired member of a
uniformed service who is receiving retired pay based upon 20 or more
years of active service in the Armed Forces is generally entitled to
credit under this part only for the length of time in active service in
the Armed Forces during a war, or active duty served in a campaign or
expedition for which a campaign badge or expeditionary medal has been
authorized. The employee is entitled to the total length of time in
active service in the Armed Forces only if the employee is considered a
preference eligible under 5 U.S.C. 3501(a)(3).
    Proposed Sec. 351.503(b)(3) provides that an employee may not
receive dual retention service credit for service performed on active
duty in the Armed Forces that was performed during concurrent civilian
employment as a Federal employee.
    Proposed Sec. 351.503(c)(1) provides that the agency is responsible
for establishing both the service computation date, and the adjusted
service computation date, applicable to each employee competing for
retention. Also, the agency is responsible for adjusting the service
computation dates to withhold retention service credit for
noncreditable service.
    Proposed Sec. 351.503(c)(2) provides that the service computation
date includes all actual creditable service under paragraph (a) and
paragraph (b) of this section.
    Proposed Sec. 351.503(c)(3) provides that the adjusted service
computation date includes all actual creditable service under sections
351.503(a) and (b), and additional retention service credit for
performance authorized by section 351.504(d).
    Proposed Sec. 351.503(d) covers the calculation of the service
computation date for retention purposes.
    Proposed Sec. 351.503(e) covers the calculation of the adjusted
service computation date that includes additional service credit for
retention purposes that is authorized by section 351.504(d).

Retention Records

    Proposed Sec. 351.505(a) provides that the agency is responsible
for maintaining the correct personnel records that are used to
determine employees' retention standing.
    Proposed Sec. 351.505(b) provides that the agency must allow its
retention registers and related records to be inspected by an employee
of the agency who has received a specific reduction in force notice,
and/or the employee's representative if the representative is acting on
behalf of that individual employee. Proposed Sec. 351.505(b) also
provides that an authorized representative of OPM has the right to
review an agency's retention records.
    Proposed Sec. 351.505(c) provides that an employee who has received
a specific notice of reduction in force has the right to review any
completed records used by the agency in a reduction in force action
that was taken, or will be taken, against the employee.
    Proposed Sec. 351.505(d) provides that an employee who has not
received a specific reduction in force notice has no right to review
the agency's retention registers and related records.
    Proposed Sec. 351.505(e) provides that the agency is responsible
for ensuring that each employee's access to retention records is
consistent with both the Freedom of Information Act and the Privacy
Act.
    Proposed Sec. 351.505(f) provides that the agency must preserve all
registers and records relating to a reduction in

[[Page 43641]]

force for at least 1 year after the date the agency issues specific
reduction in force notices.

Regulatory Flexibility Act

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

List of Subjects in Part 351

    Administrative practice and procedure, Government employees.

U.S. Office of Personnel Management.
Janice R. Lachance,
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. Section 351.503 is revised to read as follows:

Sec. 351.503  Length of service.

    (a) All civilian service as a Federal employee, as defined in 5
U.S.C. 2105(a), is creditable for purposes of this part. Civilian
service performed in employment that does not meet the definition of
Federal employee set forth in 5 U.S.C. 2105(a) is creditable for
purposes of this part only if specifically authorized by statute as
creditable for retention purposes.
    (b)(1) As authorized by 5 U.S.C. 3502(a)(A), all active duty in a
uniformed service, as defined in 5 U.S.C. 2101(3), is creditable for
purposes of this part, except as provided in paragraphs (b)(2) and
(b)(3) of this section.
    (2) As authorized by 5 U.S.C. 3502(a)(B), a retired member of a
uniformed service who is covered by Sec. 351.501(d) is entitled to
credit under this part only for:
    (i) The length of time in active service in the Armed Forces during
a war, or in a campaign or expedition for which a campaign or
expedition badge has been authorized; or
    (ii) The total length of time in active service in the Armed Forces
if the employee is considered a preference eligible under 5 U.S.C. 2108
and 5 U.S.C. 3501(a), as implemented in Sec. 351.501(d).
    (3) An employee may not receive dual service credit for purposes of
this part for service performed on active duty in the Armed Forces that
was performed during concurrent civilian employment as a Federal
employee, as defined in 5 U.S.C. 2105(a).
    (c)(1) The agency is responsible for establishing both the service
computation date, and the adjusted service computation date, applicable
to each employee competing for retention under this part. If
applicable, the agency is also responsible for adjusting the service
computation date and the adjusted service computation date to withhold
retention service credit for noncreditable service.
    (2) The service computation date includes all actual creditable
service under paragraph (a) and paragraph (b) of this section.
    (3) The adjusted service computation date includes all actual
creditable service under paragraph (a) and paragraph (b) of this
section, and additional retention service credit for performance
authorized by Sec. 351.504(d).
    (d) The service computation date is computed on the following
basis:
    (1) The effective date of appointment as a Federal employee under 5
U.S.C. 2105(a) when the employee has no previous creditable service
under paragraph (a) or (b) of this section; or if applicable,
    (2) The date calculated by subtracting the employee's total
previous creditable service under paragraph (a) or (b) of this section
from the most recent effective date of appointment as a Federal
employee under 5 U.S.C. 2105(a).
    (e) The adjusted service computation date is calculated by
subtracting from the date in paragraph (d)(1) or (d)(2) of this section
the additional service credit for retention authorized by
Sec. 351.504(d).
    3. Sec. 351.505 is revised to read as follows:

Sec. 351.505   Records.

    (a) The agency is responsible for maintaining correct personnel
records that are used to determine the retention standing of its
employees competing for retention under this part.
    (b) The agency must allow its retention registers and related
records to be inspected by:
    (1) An employee of the agency who has received a specific reduction
in force notice, and/or the employee's representative if the
representative is acting on behalf of the individual employee; and
    (2) An authorized representative of OPM.
    (c) An employee who has received a specific notice of reduction in
force under authority of subpart H of this part has the right to review
any completed records used by the agency in a reduction in force action
that was taken, or will be taken, against the employee, including:
    (1) The complete retention register with the released employee's
name and other relevant retention information (including the names of
all other employees listed on that register, their individual service
computation dates calculated under Sec. 351.503(d), and their adjusted
service computation dates calculated under Sec. 351.503(e)) so that the
employee may consider how the agency constructed the competitive level,
and how the agency determined the relative retention standing of the
competing employees; and
    (2) The complete retention registers for other positions that could
affect the composition of the employee's competitive level, and/or the
determination of the employee's assignment rights (e.g., registers to
which the released employee may have potential assignment rights under
Sec. 351.701(b) and (c)).
    (d) An employee who has not received a specific reduction in force
notice has no right to review the agency's retention registers and
related records.
    (e) The agency is responsible for ensuring that each employee's
access to retention records is consistent with both the Freedom of
Information Act (5 U.S.C. 552), and the Privacy Act (5 U.S.C. 552a).
    (f) The agency must preserve all registers and records relating to
a reduction in force for at least 1 year after the date it issues a
specific reduction in force notice.

[FR Doc. 98-21802 Filed 8-13-98; 8:45 am]
BILLING CODE 6325-01-P