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.

Proposed Rules Federal Register

81839 

Vol. 85, No. 243 

Thursday, December 17, 2020 

1Some of the provisions of E.O. 13839 were 

enjoined by the United States District Court for the 

District of Columbia. Am. Fed’n of Gov’t Employees, 

AFL–CIO v. Trump, 318 F. Supp. 3d 370 (D.D.C. 

2018). The principles pertaining to RIFs, however, 

were not among those provisions that were 

enjoined. Id. at 440. The plaintiffs did not seek 

further judicial review of this decision, so this 

determination is final. In any event, the decision 

imposing the injunction against other provisions of 

the E.O. was subsequently reversed, see Am. Fed’n 

of Gov’t Employees, AFL–CIO v. Trump, 929 F.3d 

748 (D.C. Cir. 2019), and thus no longer has any 

effect. 

OFFICE OF PERSONNEL 

MANAGEMENT 

5 CFR Parts 351 and 430 

RIN 3206–AO06 

Reduction in Force 

AGENCY: Office of Personnel 

Management. 

ACTION: Proposed rule. 

SUMMARY: The Office of Personnel 

Management (OPM) is issuing a 

proposed regulation to revise its 

reduction-in-force (RIF) regulations to 

set forth the principle that agencies 

should prioritize performance over 

length of service when determining 

which employees will be retained in a 

RIF following regulations that OPM will 

issue. In addition, OPM is exercising its 

authority to modify the order of 

retention, clarify tenure group 

definitions, and modify how credit for 

performance is computed. 

DATES: Comments must be received on 

or before January 19, 2021. 

ADDRESSES: You may submit comments, 

identified by the docket number or 

Regulation Identifier Number (RIN) for 

this proposed rulemaking, by any of the 

following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for sending comments. 

All submissions received must 

include the agency name and docket 

number or RIN for this document. The 

general policy for comments and other 

submissions from members of the public 

is to make these submissions available 

for public viewing at http://

www.regulations.gov as they are 

received without change, including any 

personal identifiers or contact 

information. 

FOR FURTHER INFORMATION CONTACT: 

Kimberly A. Holden by email at 

employ@opm.gov or by fax at (202) 606– 

4430. 

SUPPLEMENTARY INFORMATION: The OPM 

is proposing to revise its regulations 

governing reduction in force and related 

technical changes under statutory 

authority vested in it by Congress in 5 

U.S.C. 1103, 3502, 3596, 4305, and 

4315. The regulations will also assist 

agencies in carrying out certain 

principles set forth by the President in 

Executive Order (E.O.) 13839, titled: 

‘‘Promoting Accountability and 

Streamlining Removal Procedures 

Consistent with Merit Systems and 

Principles’’ consistent with law, and 

update current procedures to make them 

more efficient and effective. The 

proposed regulations will change 

existing regulations regarding RIF 

procedures to modify the order of 

retention and enhance the value of 

performance relative to length of service 

when determining which employees 

will be retained in a RIF. 

The proposed regulations will assist 

agencies in better aligning, consistent 

with law, to certain of the principles 

articulated by the President to the 

Executive Branch in E.O. 13839 and 

update current procedures to make them 

more efficient and effective.1 Apart from 

OPM’s existing authority to promulgate 

regulations relating to reductions in 

force, 5 U.S.C. 3502, Section 7 of the 

E.O. directs OPM to propose revisions to 

existing regulations, as needed, to 

effectuate the principles set forth in 

section 2, including those pertaining to 

RIFs. 

Reduction in Force 

Section 2(j) of E.O. 13839 calls on 

agencies to prioritize performance over 

length of service in determining who 

will be retained in a RIF. Section 7 of 

the E.O. directs OPM to examine 

whether existing regulations effectuate 

the principles set forth in section 2 of 

the Order. It directs OPM, ‘‘to the extent 

necessary or appropriate,’’ to propose 

for notice and public comment 

appropriate regulations to effectuate the 

principles set forth in Section 2. 

After conducting this examination, 

OPM, under its statutory authority in 5 

U.S.C. 3502, is proposing, in accordance 

with the procedural requirements under 

5 U.S.C. 1103(b) and the Administrative 

Procedure Act, to amend its regulations 

at Subpart E of 5 CFR part 351 and to 

make corresponding changes to 

Subparts B and Subpart G of 5 CFR part 

351 and to Subpart B of 5 CFR part 430 

to prioritize performance over length of 

service in a RIF. In addition, we are 

modifying the order of retention at 5 

CFR 351.501. Specifically, when 

determining the order in which 

employees are placed on a RIF retention 

register, agencies will do so on the basis 

of tenure first, followed by performance, 

then veterans’ preference, and finally 

length of service, as outlined in further 

detail below. In addition, we are 

proposing to clarify the definition of 

tenure groups. 

Proposed § 351.501 Order of retention 

establishes that competing employees in 

a RIF will be classified on a retention 

register on the basis of (in descending 

order): (1) Tenure of employment, (2) 

performance, (3) veterans’ preference, 

and (4) length of service. This section 

also clarifies that the order of retention 

provisions applies to employees in both 

the competitive and excepted services. 

Under current regulations at 5 CFR 

351.501, the order of retention for 

classifying competing employees on a 

retention register is (in descending 

order): Tenure of employment, veterans’ 

preference, length of service, and 

performance. Length of service is 

augmented by performance; an 

employee receives additional retention 

service credit (i.e., additional years of 

service) based on the employee’s 

applicable ratings of record. OPM is 

proposing to modify the order of 

retention to be: Tenure of employment, 

performance, veterans’ preference, and 

length of service. 

Under the current regulations at 5 

CFR 351.504, credit for performance is 

used to supplement an employee’s 

length of service for purposes of 

determining an employee’s standing on 

a retention register (both of these 

retention factors are expressed in years). 

An employee receives additional 

retention service credit based on his or 

her performance ratings of record and 

their assigned summary levels. This 

additional credit is added to the 

employee’s length of service to 

81840 Federal Register / Vol. 85, No. 243 / Thursday, December 17, 2020 / Proposed Rules 

determine that employee’s retention 

standing within the employee’s 

appropriate tenure group and veterans’ 

preference subgroup. An employee 

receives additional credit for 

performance (added to his or her length 

of service) on the following basis: 20 

additional years of service for each 

rating of record with a Level 5 

(Outstanding or equivalent) summary 

level; 16 additional years of service for 

each rating of record with a Level 4 

(Exceeds Fully Successful or equivalent) 

summary level; and 12 additional years 

of service for each rating of record with 

a Level 3 (Fully Successful or 

equivalent) summary level, in 

accordance with the summary levels 

described in 5 CFR 430.208. The 

additional years of service are added 

together, divided by 3, and rounded up 

to a whole number if necessary to 

determine the number of years that will 

be used to adjust an employee’s actual 

service computation date and arrive at 

an adjusted service computation date for 

RIF purposes. 

OPM is proposing to elevate 

performance above length of service in 

the RIF order of retention. We propose 

to do this by establishing performance 

as a subgroup within the appropriate 

tenure group. The proposed order of 

retention will be: (1) Tenure, (2) 

performance, (3) veterans’ preference, 

and (4) length of service. Under this 

proposal, employees competing in a RIF 

will first be sorted into their appropriate 

tenure group; then within each tenure 

group employees will be sorted by 

performance in descending order based 

on the total of the employee’s three most 

recent ratings of record; then within 

each tenure group and performance 

subgroup, according to their veterans’ 

preference status or subgroup; then 

within each tenure group, performance 

subgroup, and veterans’ preference 

subgroup, employees will be listed on 

the retention register in terms of their 

length of service based on each 

employee’s actual service computation 

date. Thus, length of service will be 

used as a tie-breaker for employees with 

the same tenure, three-year total of their 

summary level performance ratings, and 

veterans’ preference status (i.e., the first 

three factors being equal, an employee 

with longer length of service will be 

listed ahead of an employee(s) with 

shorter length of service). 

We are proposing that an agency 

determine an employee’s performance 

standing by adding each employee’s 

summary level performance rating for 

the three most recent ratings of record 

issued under 5 CFR part 430 (or 

equivalent ratings of record established 

in accordance with 5 CFR 430.201(c)) 

prior to the RIF. An agency will place 

employees on a retention register based 

on the total of each employee’s 

summary level rating in descending 

order, within each tenure group. In most 

instances, an employee’s summary level 

ratings of record for the three most 

recent ratings of record will be added 

together. Ratings of record will be 

assigned a numerical value as follows in 

conjunction with the patterns of 

summary level in 5 CFR 430.208(d): 5 

for a Level 5 (Outstanding or equivalent) 

summary level, 4 for a Level 4 (Exceeds 

Fully Successful or equivalent) 

summary level, 3 for a Level 3 (Fully 

Successful or equivalent) summary 

level, 2 for a Level 2 (Minimally 

Successful or equivalent) summary 

level, 1 for a Level 1 (Unacceptable) 

summary level. Agencies will list 

competing employees on the retention 

register in descending order (within the 

same tenure group) based on the total of 

their three most recent ratings of record. 

OPM believes listing employees in 

descending order (i.e., highest to lowest) 

based on their total summary level 

rating for three most recent ratings of 

record is the most objective 

methodology for these purposes, and 

best implements the principle of 

emphasizing performance over length of 

service as set forth in E.O. 13839. 

The following example illustrates and 

contrasts the impact of performance 

ratings of record and their summary 

levels on a retention register under the 

current rules and the proposed rules. 

Consider the following employees in a 

General Schedule (GS) 201–12 position: 

Name Tenure 

group 

Vets pref 

subgroup 

Rating of 

record 

summary 

levels 

Service 

comp date 

Al ...................................................................................................................... I A 3/3/3 01/01/1988 

Barb ................................................................................................................. I A 5/4/5 01/01/2010 

Carl .................................................................................................................. I A 3/4/3 01/01/2000 

Dave ................................................................................................................. I A 4/5/4 01/01/1980 

Emma ............................................................................................................... I A 3/4/4 01/01/2014 

Under the current rules, a retention 

register constructed in 2018 for these 

employees would look like this, based 

on retention factors considered in this 

order: Tenure | Vets Pref | Adjusted 

Service Computation Date (ASCD) — 

i.e., the service computation date (SCD) 

adjusted for additional service credit 

(ASC) based on ratings of record and 

summary levels: 

Federal Register / Vol. 85, No. 243 / Thursday, December 17, 2020 / Proposed Rules 81841 

Under the proposed rules, the 

retention register for these same 

competing employees would look like 

this, based on considering retention 

factors in this order: Tenure | 

Performance based on the total of the 

employee’s summary levels | Vets Pref | 

Service Computation Date: 

Barb: I | 14 | A | 01/01/2010 

Dave: I | 13 | A | 01/01/1980 

Emma: I | 11 | A | 01/01/2014 

Carl: I | 10 | A | 01/01/2000 

Al: I | 9 | A | 01/01/1988 

The following illustrates how 

veterans’ preference and length of 

service will be used under the proposed 

rules. Assuming the same group of 

employees but with two differences: Al 

and Carl have the same ratings of 

record, but Carl’s veterans’ preference 

subgroup is AD, as follows: 

Name Tenure 

group 

Rating of 

record 

summary 

levels 

Vets pref 

subgroup 

Service 

comp date 

Al ...................................................................................................................... I 3/3/3 A 01/01/1988 

Barb ................................................................................................................. I 5/4/5 A 01/01/2010 

Carl .................................................................................................................. I 3/3/3 AD 01/01/2000 

Dave ................................................................................................................. I 4/5/4 A 01/01/1980 

Emma ............................................................................................................... I 3/4/4 A 01/01/2014 

Under the proposed rules, the 

retention register for these employees 

would look like this, based on 

considering retention factors in this 

order (in this example Carl is listed 

ahead of Al because he is in veterans’ 

preference subgroup AD despite having 

less service credit than Al): 

Barb: I | 14 | A | 01/01/2010 

Dave: I | 13 | A | 01/01/1980 

Emma: I | 11 | A | 01/01/2014 

Carl: I | 9 | AD | 01/01/2000 

Al: I | 9 | A | 01/01/1988 

OPM is proposing to revamp 5 CFR 

part 351, sections 501 through 505. We 

are proposing to renumber current 

§ 351.505 Records, and § 351.506 

Effective date of retention standing, to 

§ 351.506 Records and § 351.507 

Effective date of retention standing, 

respectively. We are also proposing 

corresponding changes to § 351.701 

Assignment rights (bump and retreat). 

Lastly, OPM is proposing to modify 

§ 430.208(d) to attune those provisions 

with the proposed changes in 5 CFR 

part 351. The proposed changes are as 

follows: 

Proposed § 351.501 Order of retention 

establishes that competing employees in 

a RIF will be classified on a retention 

register on the basis of (in descending 

order): (1) Tenure of employment, (2) 

performance, (3) veterans’ preference, 

and (4) length of service. This section 

also clarifies that the order of retention 

provisions applies to employees in both 

the competitive and excepted services. 

Proposed § 351.502 Tenure of 

employment defines tenure groups for 

competitive service and excepted 

service employees. Proposed 

§ 351.502(a) defines tenure groups for 

competitive service employees. The new 

§ 351.502(a) incorporates the provisions 

currently found in § 351.501(b)(1)–(3) 

but clarifies that Tenure group I will 

consist of career employees who are not 

serving a probationary period. Proposed 

tenure group II will consist of careerconditional employees and other 

employees serving a probationary 

period, as well as the other categories of 

employees currently described in 

§ 351.501(b)(2). OPM is deleting the 

reference to ‘‘temporary appointments 

pending establishment of a register’’ 

listed in current Tenure group III at 

§ 351.501(b)(3) because these types of 

appointments, also known as TAPER 

appointments, were abolished in 2003 

(see 68 FR 35265, ‘‘Organization of the 

Government for Personnel Management, 

Overseas Employment, Temporary and 

Term Employment, Recruitment and 

Selection for Temporary and Term 

Appointments Outside the Register, 

Examining System, and Training’’). 

Proposed § 351.502(b) defines tenure 

groups for excepted service employees. 

The new § 351.502(b) incorporates the 

provisions currently found in § 351.502 

Order of retention—excepted service 

without change. OPM is proposing to 

consolidate tenure of employment 

definitions for both services into one 

section for the convenience of the 

reader. 

Proposed § 351.503 Performance 

establishes that an agency will list 

employees on a RIF retention register 

(within the same tenure group) based on 

the total of each employee’s summary 

level ratings for the employee’s three 

most recent ratings of record for 

performance. In accordance with 5 CFR 

430.208(d) summary level ratings of 

record for these purposes are as follows: 

(i) 5 for a Level 5 (Outstanding or 

equivalent) summary level 

(ii) 4 for a Level 4 (Exceeds Fully 

Successful or equivalent) summary 

level 


EP17DE20.075</GPH>
81842 Federal Register / Vol. 85, No. 243 / Thursday, December 17, 2020 / Proposed Rules 

(iii) 3 for a Level 3 (Fully Successful or 

equivalent) summary level 

(iv) 2 for a Level 2 (Minimally 

Successful or equivalent) summary 

level, and 

(v) 1 for a Level 1 (Unacceptable) 

summary level 

This section also explains that an 

agency lists competing employees on 

the retention register in descending 

order (i.e., highest to lowest) based on 

their totals within the same tenure 

group. 

Section 351.503(b) Ratings used 

explains that an employee’s ratings of 

record are to be used in a manner 

consistent with the provisions of 

subpart B of 5 CFR part 430, and 

provides guidance as to how an agency 

determines an employee’s performance 

standing for RIF purposes for employees 

not covered under subpart B of 5 CFR 

part 430 and in other special 

circumstances. § 351.503(b) remains 

largely unchanged from the provisions 

currently in § 351.504(a)(1)–(3), though 

we are removing the reference to 

‘additional retention service credit’ 

currently found in § 351.504(a)(1). 

Section 351.503(c) Consideration of 

performance includes language 

currently in § 351.504(b) but modifies 

this language by removing the reference 

to ‘‘additional retention service credit’’ 

consistent with the aim of E.O. 13839 

(i.e., credit for performance will no 

longer be added to an employee’s length 

of service). Performance will now be a 

subgroup, within the tenure group, 

which will be based on the total of each 

employee’s summary level ratings for 

the employee’s three most recent ratings 

of record for performance consistent 

with § 351.503(a). Proposed 

§ 351.503(c)(1) removes the reference to 

‘awarding additional retention service 

credit’ currently found in 

§ 351.504(b)(4). 

Section 351.503(d) How to apply 

performance ratings is a new subsection 

which explains to agencies that they 

must total the summary levels from an 

employee’s three most recent ratings of 

record to derive a total summary level 

value for purposes of placing the 

employee on a RIF retention register 

under this part. This new subsection 

uses the rating of record summary levels 

described in subpart B of 5 CFR part 

430. For example, the employees below 

are covered under a pattern H fivesummary level rating performance 

appraisal system as described in 5 CFR 

430.208(d). Their ratings and totals are: 

Employee Ratings Total 

Alice .............................. 5/4/4 13 

Bill ................................. 4/3/3 10 

Employee Ratings Total 

Carol ............................. 4/4/3 11 

Fred .............................. 3/4/5 12 

These employees would be listed on 

the retention register in the following 

order: Alice, Fred, Carol, then Bill. 

New paragraph § 351.503(e) Single 

rating pattern describes how agencies 

list employees who have been covered 

under the same rating pattern of 

summary levels during the 4-year period 

prior to the date of issuance of the 

reduction in force notice or the agencyestablished cutoff date. Subparagraph 

(e)(ii) proposes that for employees 

covered under a summary level 

appraisal system in which the highest 

summary level is a level ‘‘3’’ rating (i.e., 

a pattern A (‘pass/fail’), or pattern D 

system) the agency may create a 

performance subgroup for employees 

who have documented exceptional 

performance above the norm. This 

subparagraph explains that evidence of 

exceptional performance may include 

documentation showing an agency: Has 

awarded an employee the highest 

Agency or Departmental award (such as 

a Secretary’s or Chairman’s award), a 

special act or service award, a quality 

step increase, or other performance 

awards or bonus (e.g., a ‘time-off’ for 

demonstrated performance above 

expectations). OPM is proposing this to 

effectuate the principle of the E.O. 

(which is to elevate performance over 

length of service) and to provide a 

method by which an agency may make 

meaningful distinctions among 

employees in a pattern A or D 

performance appraisal program (i.e., the 

highest summary level rating is a ‘‘3’’ or 

satisfactory) who have documented 

performance above expectations in these 

appraisals systems. 

In new subparagraph 

§ 351.503(e)(2)(B) OPM is also 

proposing to allow an agency to give 

more weight to certain performancerelated actions than others for purposes 

of listing some level ‘‘3’’ employees 

ahead of other employees on a retention 

register. For example, an agency could 

list all employees who received the 

agency’s highest sustained performance 

award ahead of all employees who 

received an organizational or 

component-specific award, and ahead 

employee who received a time off award 

(both groups would be listed ahead of 

the other level ‘‘3’’ employees). An 

agency that chooses this option must 

specify and document, in advance of 

any RIF, how it will prioritize 

performance awards for these purposes. 

OPM believes this option is consistent 

with the E.O. and the principle of 

elevating performance over length of 

service, and it provides an agency with 

a method for making meaningful 

distinctions among employees with a 

fully successful rating when some of 

these employees were recognized for 

exceptional performance. 

Section 351.503(f) Multiple rating 

patterns addresses situations in which 

an agency has employees in a 

competitive area who have ratings of 

record under more than one pattern of 

summary levels, as described in 5 CFR 

403.208(d). This paragraph explains that 

an agency shall consider the mix of 

patterns and proposes that an agency 

shall provide enhanced performance 

standing to employees under disparate 

pattern summary levels under certain 

circumstances. To do this OPM is 

proposing that an agency transmute or 

assign an employee a higher summary 

level rating than what he or she received 

under a previous rating system only 

when there is documented evidence of 

exceptional or higher level performance 

consistent with the criteria in proposed 

§ 351.503(e). An agency must transmute 

the rating of an employee who meets 

this requirement to the highest summary 

level of the pattern summary level being 

used during the RIF (i.e., a level ‘‘4’’ 

rating if the agency conducting the RIF 

uses a pattern C or G summary level 

appraisal system, or a level ‘‘5’’ rating if 

the agency uses a pattern B, E, F, or H 

summary level appraisal system). 

Documented evidence of exceptional or 

higher level performance for these 

purposes includes: Award or receipt of 

the highest Agency or Departmental 

award (such as a Secretary’s or 

Chairman’s award), a quality step 

increase, or an annual performance 

appraisal bonus. For example, an 

employee was covered by a pattern A 

(pass/fail) appraisal program for two 

years and a pattern H (5 summary level) 

appraisal program for the one year prior 

to a RIF. While covered under the 

pattern A appraisal program the 

employee received his agency’s highest 

award for excellent performance in the 

second year. Under the five-summary 

level system he received a level ‘‘4’’ 

rating. Under this proposal the agency 

must assign the employee a higher 

rating level; so in this instance the 

employee’s performance ratings for the 

three year period would be 3/5/4 (his 

level 3 rating would be transmuted to a 

level 5) and his ratings of record total 

for the three year period would be 12 for 

purposes of 351.503(d). OPM is also 

proposing that an employee who goes 

from an appraisal system which uses a 

higher pattern of summary levels to a 

lower one (e.g., an employee who goes 

Federal Register / Vol. 85, No. 243 / Thursday, December 17, 2020 / Proposed Rules 81843 

from a 5 summary level appraisal 

program to two level system (i.e., pass/ 

fail system)) with ratings above the 

highest summary level of the lower 

pattern system be listed ahead of any 

employee on the retention register who 

does not have documented evidence of 

exceptional performance as described 

above. Lastly, this proposed section 

requires an agency to specify the basis 

on which it will consider exceptional or 

higher level performance described in 

§ 351.503(e) and transmute or assign an 

employee a higher rating in accordance 

with the pattern of summary level used 

during the RIF, and make this 

information readily available for review 

prior to running a reduction in force. 

OPM is proposing enhanced 

performance credit or standing to 

implement the E.O.’s principle that an 

agency emphasize performance over 

length of service in a RIF. We believe 

this method prevents exceptional 

performers from being disadvantaged 

because they may be covered under two 

or more patterns of summary rating 

levels which may not make meaningful 

distinctions for performance among 

employees. 

§ 351.503(g) Missing ratings describes 

how an agency should factor 

performance ratings into the RIF process 

when an employee does not have three 

actual ratings of record during the 4- 

year period prior to the date of issuance 

of RIF notices, or the 4-year period prior 

to the agency-established cut-off date. 

Proposed § 351.503(g) uses the modal 

rating concept for employees with no 

ratings during the 4 year period prior to 

the RIF currently found in 

§ 351.504(c)(1) but modifies the current 

provisions by removing the reference to 

’’additional retention service credit’’ 

consistent with the aim of E.O. 13839 

(i.e., credit for performance will no 

longer be added to an employee’s length 

of service). The term ‘modal rating’ is 

currently defined in § 351.203. For 

employees with at least one rating of 

record but less than three, this section 

proposes that an agency total the 

summary levels, divide by the number 

of ratings, and use this value for the 

missing ratings. For example, an 

employee in five level pattern H 

summary level appraisal system has 

summary level rating of ‘‘3’’ fully 

successful and ‘‘4’’ exceeds fully 

successful but is missing a third rating. 

The agency would add 3 + 4, then 

divide by 2, for a value of 3.5 for the 

missing rating. The agency then adds 

the three ratings of record: 3, 4, and 3.5 

for a total of 10.5 and enters the 

employee on the retention register 

accordingly. 

Proposed § 351.504 Veterans’ 

preference defines veterans’ preference 

subgroups for employees in both the 

competitive and excepted services. This 

proposed section will consist of the 

provisions currently found in 

§ 351.501(c) and (d) without change. 

OPM is proposing to delete current 

§ 351.502 Order of retention—excepted 

service and cover these provisions in 

proposed § 351.501(a). 

OPM is proposing to modify current 

§ 351.705 Administrative assignment to 

be consistent with the proposed changes 

to §§ 351.501–.505. Specifically, OPM is 

proposing to update § 351.705(a)(2) to 

incorporate the new order of retention 

and the creation of the new subgroup 

called ‘performance’. 

Performance Management 

OPM is proposing to modify current 

§ 430.208(d)(4) to attune this language 

with the proposed changes in part 351. 

To do this, we propose removing the 

current reference to ‘‘. . . assigning 

additional retention service credit under 

§ 351.504.’’ 

OPM is proposing to modify current 

§ 430.208(d)(5) by removing the 

reference to ‘‘the number of years of 

additional retention service credit’’ and 

replacing it with a general reference to 

proposed § 351.503 Performance. 

Regulatory Impact Analysis 

OPM has examined the impact of this 

rulemaking as required by Executive 

Order 12866 and Executive Order 

13563, which directs agencies to assess 

all costs and benefits of available 

regulatory alternatives and, if regulation 

is necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public, health, and 

safety effects, distributive impacts, and 

equity). A regulatory impact analysis 

must be prepared for major rules with 

economically significant effects of $100 

million or more in any one year. While 

this proposed rule does not reach the 

economic effect of $100 million or more 

under Executive Order 12866, this 

proposed rule is still designated as a 

‘‘significant regulatory action,’’ under 

Executive Order 12866. 

Reducing Regulation and Controlling 

Regulatory Costs 

This proposed rule is not an E.O. 

13771 regulatory action because this 

proposed rule is expected to be no more 

than de minimis costs. 

Regulatory Flexibility Act 

The Office of Personnel Management 

certifies that this proposed rule will not 

have a significant economic impact on 

a substantial number of small entities. 

Federalism 

We have examined this proposed rule 

in accordance with Executive Order 

13132, Federalism, and have 

determined that this proposed rule will 

not have any negative impact on the 

rights, roles and responsibilities of 

State, local, or tribal governments. 

Civil Justice Reform 

This regulation meets the applicable 

standard set forth in Executive Order 

12988. 

Unfunded Mandates Reform Act of 

1995 

This proposed rule will not result in 

the expenditure by state, local, and 

tribal governments, in the aggregate, or 

by the private sector, of $100 million or 

more in any year and it will not 

significantly or uniquely affect small 

governments. Therefore, no actions were 

deemed necessary under the provisions 

of the Unfunded Mandates Reform Act 

of 1995. 

Congressional Review Act 

The Congressional Review Act (5 

U.S.C. 801 et seq.) requires rules to be 

submitted to Congress before taking 

effect. OPM will submit to Congress and 

the Comptroller General of the United 

States a report regarding the issuance of 

this proposed rule before its effective 

date, as required by 5 U.S.C. 801. This 

proposed rule is not a major rule as 

defined by the Congressional Review 

Act (CRA) (5 U.S.C. 804). 

Paperwork Reduction Act of 1995 (44 

U.S.C. Chapter 35) 

This regulatory action will not impose 

any additional reporting or 

recordkeeping requirements under the 

Paperwork Reduction Act. 

List of Subjects in 5 CFR Parts 351 and 

430 

Government employees. 

Office of Personnel Management. 

Alexys Stanley, 

Regulatory Affairs Analyst. 

Accordingly, for the reasons stated in 

the preamble, OPM proposes to amend 

5 CFR parts 351, and 430 as follows: 

PART 351—REDUCTION IN FORCE 

■ 1. Revise the authority citation for part 

351 to read as follows: 

Authority: 5 U.S.C. 1302, 3502, 3503; sec. 

351.801 also issued under E.O. 12828, 58 FR 

2965; E.O. 13839, 83 FR 25343. 

81844 Federal Register / Vol. 85, No. 243 / Thursday, December 17, 2020 / Proposed Rules 

Subpart B—General Provisions 

■ 2. In § 351.203, revise the definition of 

‘‘Current rating of record’’ to read as 

follows: 

§ 351.203 Definitions. 

* * * * * 

Current rating of record is the rating 

of record for the most recently 

completed appraisal period as provided 

in § 351.503(c)(3). 

* * * * * 

Subpart E—Retention Standing 

■ 3. Revise Subpart E to read as follows: 

Subpart E—Retention Standing 

Sec. 

351.501 Order of retention. 

351.502 Tenure of employment. 

351.503 Performance. 

351.504 Veterans’ preference. 

351.505 Length of service. 

351.506 Records. 

351.507 Effective date of retention standing. 

§ 351.501 Order of retention. 

Competing employees in the 

competitive and excepted services shall 

be classified on a retention register on 

the basis of four factors: Tenure of 

employment, performance, veterans’ 

preference, and length of service as 

follows: 

(a) On the same retention register in 

descending order by tenure group I, 

group II, group III, as described in 

§ 351.502; 

(b) Within each tenure group by 

performance based on the sum of the 

summary levels for the employee’s three 

most recent ratings of record for 

performance in accordance with 

§ 351.503; 

(c) Within each performance subgroup 

by veterans’ preference subgroup AD, 

subgroup A, subgroup B, as described in 

§ 351.504; and 

(d) Within each veterans’ preference 

subgroup by years of service beginning 

with the earliest service computation 

date, as computed under § 351.505, 

when two or more employees have the 

same summary level total value for the 

employees’ three most recent ratings of 

record. 

§ 351.502 Tenure of employment. 

(a) Competitive service. Tenure groups 

in the competitive service are defined as 

follows: 

(1) Group I includes each career 

employee who is not serving a 

probationary period. (A supervisory or 

managerial employee serving a 

probationary period required by subpart 

I of part 315 of this chapter is in group 

I if the employee is otherwise eligible to 

be included in this group.) The 

following employees are in group I as 

soon as the employee completes any 

required probationary period for initial 

appointment: 

(i) An employee for whom substantial 

evidence exists of eligibility to 

immediately acquire status and career 

tenure, and whose case is pending final 

resolution by OPM (including cases 

under Executive Order 10826 to correct 

certain administrative errors); 

(ii) An employee who acquires 

competitive status and satisfies the 

service requirement for career tenure 

when the employee’s position is brought 

into the competitive service; 

(iii) An administrative law judge; 

(iv) An employee appointed under 5 

U.S.C. 3104, which provides for the 

employment of specially-qualified 

scientific or professional personnel, or a 

similar authority; and 

(v) An employee who acquired status 

under 5 U.S.C. 3304(c) on transfer to the 

competitive service from the legislative 

or judicial branches of the Federal 

Government. 

(2) Group II includes each careerconditional employee, and each 

employee serving a probationary period 

under subpart H of part 315 of this 

chapter. (A supervisory or managerial 

employee serving a probationary period 

required by subpart I of part 315 of this 

chapter is in group II if the employee 

has not completed a probationary period 

under subpart H of part 315 of this 

chapter.) Group II also includes an 

employee when substantial evidence 

exists of the employee’s eligibility to 

immediately acquire status and careerconditional tenure, and the employee’s 

case is pending final resolution by OPM 

(including cases under Executive Order 

10826 to correct certain administrative 

errors). 

(3) Group III includes all employees 

serving under indefinite appointments, 

status quo appointments, term 

appointments, and any other non-status 

non-temporary appointments which 

meet the definition of provisional 

appointments contained in §§ 316.401 

and 316.403 of this chapter. 

(b) Excepted service. Tenure groups in 

the excepted service are defined as 

follows: 

(1) Group I includes each permanent 

employee whose appointment carries no 

restriction or condition such as 

conditional, indefinite, specific time 

limit, or trial period. 

(2) Group II includes each employee: 

(i) Serving a trial period; or 

(ii) Whose tenure is equivalent to a 

career-conditional appointment in the 

competitive service in agencies having 

such excepted appointments. 

(3) Group III includes each employee: 

(i) Whose tenure is indefinite (i.e., 

without specific time limit), but not 

actually or potentially permanent; 

(ii) Whose appointment has a specific 

time limitation of more than 1 year; or 

(iii) Who is currently employed under 

a temporary appointment limited to 1 

year or less, but who has completed 1 

year of current continuous service under 

a temporary appointment with no break 

in service of 1 workday or more. 

§ 351.503 Performance. 

(a) Performance subgroup. Within the 

tenure groups an agency shall list 

competing employees in descending 

order (i.e., highest to lowest) based on 

the total of the summary levels for each 

employee’s three most recent ratings of 

record for performance in accordance 

with part 430 of this Chapter. 

(b) Ratings used. (1) Except as 

provided at § 351.503(d)(3), only ratings 

of record as defined in § 351.203 shall 

be used as the basis for classifying an 

employee’s performance in a reduction 

in force. 

(2) For employees who received 

ratings of record while covered by part 

430, subpart B, of this chapter, the 

summary levels assigned for those 

ratings of record shall be used to 

establish the employee’s performance 

subgroup in a reduction in force in 

accordance with 5 CFR 351.501, except 

as provided in 5 CFR 351.503(d)(3). 

(3) For employees who received 

performance ratings while not covered 

by the provisions of 5 U.S.C. chapter 43 

and subpart B of part 430 of this 

chapter, those performance ratings shall 

be considered ratings of record with 

summary levels for designating an 

employee’s performance subgroup in a 

reduction in force only when it is 

determined that those performance 

ratings are equivalent ratings of record 

under the provisions of § 430.201(c) of 

this chapter. The agency conducting the 

reduction in force shall make that 

determination. 

(c) Consideration of performance. (1) 

An employee’s entitlement to 

performance consideration under this 

subpart shall be based on the 

employee’s three most recent ratings of 

record received during the 4-year period 

prior to the date of issuance of reduction 

in force notices, except as otherwise 

provided in paragraphs (c)(2) and (g) of 

this section. 

(2) To provide adequate time to 

determine employee performance total 

values, an agency may provide for a 

cutoff date, a specified number of days 

prior to the issuance of reduction in 

force notices after which no new ratings 

of record will be put on record and used 

Federal Register / Vol. 85, No. 243 / Thursday, December 17, 2020 / Proposed Rules 81845 

for purposes of this subpart. When a 

cutoff date is used, an employee’s 

performance average will be based on 

the three most recent ratings of record 

received during the 4-year period prior 

to the cutoff date. 

(3) To be considered for purposes of 

this subpart, a rating of record and its 

assigned summary level (including any 

adjustments to performance consistent 

with this subpart) must have been 

issued to the employee, with all 

appropriate reviews and signatures, and 

must also be on record (i.e., the rating 

of record is available for use by the 

office responsible for establishing 

retention registers). 

(4) The use of performance ratings of 

record and assigned summary levels 

(including any adjustments to 

performance) for purposes of this 

subpart must be uniformly and 

consistently applied within a 

competitive area, and must be 

consistent with any agency’s 

appropriate issuance(s) that implement 

these policies in part 351. Each agency 

must specify in its appropriate 

issuance(s): 

(i) The conditions under which a 

rating of record is considered to have 

been received for purposes of 

determining whether it is within the 4- 

year period prior to either the date the 

agency issues reduction in force notices 

or the agency-established cutoff date for 

ratings of record, as appropriate; and 

(ii) If the agency elects to use a cutoff 

date, the number of days prior to the 

issuance of reduction in force notices 

after which no new ratings of record 

will be put on record and used for 

purposes of this subpart. 

(d) How to apply performance ratings 

of record. Agencies determine each 

competing employee’s performance 

standing (or numerical value) by adding 

the employee’s three most recent 

summary level ratings of record during 

the 4-year period prior to the date of 

issuance of the reduction in force notice 

or the agency-established cutoff date. 

An agency lists competing employees 

on the retention register in descending 

order (i.e., highest to lowest) based on 

these totals. 

(e) Single rating pattern. (1) If all 

employees in a reduction in force 

competitive area have received ratings 

of record under a single pattern of 

summary levels as set forth in 

§ 430.208(d) of this chapter, agencies 

must apply the method described in 

paragraph (d) of this section. 

(2) An agency may give additional 

credit for performance for employees 

covered under a summary level 

appraisal system in which the highest 

summary level is a level ‘‘3’’ rating (i.e., 

a pattern A ‘pass/fail’, or pattern D 

system), consistent with § 430.208(d) of 

this chapter. At its discretion an agency 

may create a subgroup of level ‘‘3’’ 

employees with demonstrated 

exceptional performance and list them 

ahead of other level ’’3’’ employees if, 

within the 4-year period prior to either 

the date the agency issues reduction in 

force notices or the agency-established 

cutoff date for ratings of record, the 

following condition is met: 

(i) The agency has applied 

performance-related criteria and taken 

an action that recognizes the employee’s 

exceptional performance; such actions 

may include but are not limited to 

awarding an employee: The highest 

Agency or Departmental award (such as 

a Secretary’s or Chairman’s award), a 

special act or service award, a quality 

step increase, or other performance 

awards or bonus (e.g., a ’time-off’ for 

demonstrated performance above 

expectations), etc. 

(ii) An agency may determine on its 

own whether to give more weight to the 

performance-related action described in 

paragraph (e)(2)(i) of this section for 

purposes of listing some level ‘‘3’’ 

employees ahead of other on a retention 

register. For example, an agency could 

list all employees who received the 

agency’s highest sustained performance 

award ahead of all employees who 

received an organizational or 

component-specific award, and ahead of 

an employee who received a time off 

award. An agency which chooses this 

option must specify and document, in 

advance of the RIF, how it will 

prioritize performance awards for these 

purposes. 

(iii) An agency that chooses to give an 

employee additional credit for 

performance must specify and 

document, in advance of the RIF, how 

it will prioritize performance awards for 

these purposes and make this criterion 

readily available for review. 

(f) Multiple rating patterns. (1) If an 

agency has employees in a competitive 

area who have ratings of record under 

more than one pattern of summary 

levels, as set forth in § 430.208(d) of this 

chapter, it shall consider the mix of 

patterns and provide additional 

retention credit for performance in 

accordance with the following: 

(i) Transmute or assign an employee 

a higher summary level rating than what 

he or she received under their previous 

appraisal system in accordance with the 

appraisal system (i.e., pattern of 

summary level) being applied to the 

Reduction in Force; 

(ii) Transmute or assign an employee 

a summary level rating only when there 

is documented evidence of exceptional 

or higher level performance as 

evidenced by an employee who received 

the highest Agency or Departmental 

award (such as a Secretary’s or 

Chairman’s award), a quality step 

increase, or appraisal performance 

awards or bonus (e.g., a ‘‘time-off’’ for 

demonstrated performance above 

expectations in lieu of a cash bonus); 

and 

(iii) Each agency must specify and 

document, in advance of a RIF, the basis 

on which it will transmute an 

employee’s rating; i.e., the agency needs 

to describe how it will translate 

evidence of documented exceptional 

performance to a higher performance 

rating under the appraisal system (i.e., 

pattern of summary level) being applied 

to the RIF and make this criteria readily 

available for review. 

(iii) An agency must transmute the 

rating of an employee who meets the 

requirement in 351.503(f)(1)(B) to the 

highest summary level of the pattern 

summary level being applied to the RIF 

(i.e., a level ‘‘4’’ rating if the agency 

conducting the RIF uses a pattern C or 

G summary level appraisal system, or a 

level ‘‘5’’ rating if the agency uses a 

pattern B, E, F, or H summary level 

appraisal system). An agency cannot 

transmute a rating to a summary level 

which is not among those in the pattern 

being applied to the RIF. 

(ii) In situations in which the agency 

running the RIF is using a pattern 

summary level rating appraisal system 

with a summary level no higher than a 

level ‘‘3’’ (i.e., a pass/fail system) but 

has employees rated previously under a 

pattern with higher summary levels the 

agency must place the employees with 

the higher summary ratings at the 

performance subgroup at the top of 

retention register, or ahead of, other 

summary level ‘‘3’’ employees with no 

documented evidence of exceptional 

performance. 

(g) Missing ratings. (1) Use of 

performance ratings for employees who 

do not have three actual ratings of 

record during the 4-year period prior to 

the date of issuance of reduction in 

force notices or the 4-year period prior 

to the agency-established cutoff date for 

ratings of record permitted in paragraph 

(c)(2) of this section shall be determined 

under paragraph (d) of this section, as 

appropriate, and as follows: 

(2) The performance standing of an 

employee who has not received any 

rating of record for any year during the 

4-year period shall be based on the 

modal rating as defined in 5 CFR 

351.203 for the summary level pattern 

that applies to the employee’s official 

position of record at the time of the 

reduction in force. 

81846 Federal Register / Vol. 85, No. 243 / Thursday, December 17, 2020 / Proposed Rules 

(3) The performance standing of an 

employee who has received at least one 

but fewer than three previous ratings of 

record during the 4-year period shall 

have his or her performance standing 

determined on the basis of the value of 

summary levels for the actual rating(s) 

of record divided by the number of 

actual ratings received. If an employee 

has received only two actual ratings of 

record during the period, the value of 

the summary levels is added together 

and divided by 2, with the result being 

either (1) a whole number or (2) a 

number with .5 decimal value. The 

agency totals these values and lists the 

employee in score order in accordance 

with § 351.204(d). If an employee has 

received only one actual rating of record 

during the period, its summary level 

value determines the employee’s 

performance subgroup for purposes of 

this part. 

§ 351.504 Veterans’ preference. 

(a) Veterans’ preference subgroups. 

Veterans’ preference subgroups for both 

competitive and excepted service 

employees are defined as follows: 

(1) Subgroup AD includes each 

preference eligible employee who has a 

compensable service-connected 

disability of 30 percent or more. 

(2) Subgroup A includes each 

preference eligible employee not 

included in subgroup AD. 

(3) Subgroup B includes each 

nonpreference eligible employee. 

(b) A retired member of a uniformed 

service is considered a preference 

eligible under this part only if the 

member meets at least one of the 

conditions of the following paragraphs 

(b)(1), (2), or (3) of this section, except 

as limited by paragraph (b)(4) or (b)(5): 

(1) The employee’s military 

retirement is based on disability that 

either: 

(i) Resulted from injury or disease 

received in the line of duty as a direct 

result of armed conflict; or 

(ii) Was caused by an instrumentality 

of war incurred in the line of duty 

during a period of war as defined by 

sections 101 and 301 of title 38, United 

States Code. 

(2) The employee’s retired pay from a 

uniformed service is not based upon 20 

or more years of full-time active service, 

regardless of when performed but not 

including periods of active duty for 

training. 

(3) The employee has been 

continuously employed in a position 

covered by this part since November 30, 

1964, without a break in service of more 

than 30 days. 

(4) An employee retired at the rank of 

major or above (or equivalent) is 

considered a preference eligible under 

this part if such employee is a disabled 

veteran as defined in section 2108(2) of 

title 5, United States Code, and meets 

one of the conditions covered in 

paragraphs (b)(1), (2), or (3) of this 

section. 

(5) An employee who is eligible for 

retired pay under chapter 67 of title 10, 

United States Code, and who retired at 

the rank of major or above (or 

equivalent) is considered a preference 

eligible under this part at age 60, only 

if such employee is a disabled veteran 

as defined in section 2108(2) of title 5, 

United States Code. 

§ 351.505 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 

§ 351.503(b) 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 

§ 351.504(b). 

(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 the 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 to withhold retention 

service credit for non-creditable service. 

(2) The service computation date 

includes all actual creditable service 

under paragraph (a) and paragraph (b) of 

this section. 

(d) Service computation date. 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). 

§ 351.506 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, and 

their individual service computation 

dates calculated under § 351.505(d)), 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 

§ 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. 

Federal Register / Vol. 85, No. 243 / Thursday, December 17, 2020 / Proposed Rules 81847 

1 ‘‘Fitness for Duty Programs; Final Rule,’’ 73 FR 

16966 (March 31, 2008). 

(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. 

§ 351.507 Effective date of retention 

standing. 

(a) The retention standing of each 

employee released from a competitive 

level in the order prescribed in 

§ 351.601 is determined as of the date 

the employee is so released. 

(b) The retention standing of each 

employee retained in a competitive 

level as an exception under 

§ 351.606(b), § 351.607, or § 351.608, is 

determined as of the date the employee 

would have been released had the 

exception not been used. The retention 

standing of each employee retained 

under any of these provisions remains 

fixed until completion of the reduction 

in force action which resulted in the 

temporary retention. 

(c) When an agency discovers an error 

in the determination of an employee’s 

retention standing, it shall correct the 

error and adjust any erroneous 

reduction-in-force action to accord with 

the employee’s proper retention 

standing as of the effective date 

established by this section. 

■ 5. Revise § 351.705(a)(2) to read as 

follows: 

§ 351.705 Administrative assignment. 

(a) * * * 

(2) Permit an employee in tenure 

group III, same performance subgroup, 

veterans’ preference subgroup AD to 

displace an employee in tenure group 

III, same performance subgroup, 

veterans’ preference subgroup A or B, or 

permit an employee in tenure group III, 

same performance subgroup, veterans’ 

preference subgroup A to displace an 

employee in tenure group III, same 

performance subgroup, veterans’ 

preference subgroup B consistent with 

§ 351.701 (e.g., an employee in tenure 

group III, performance summary level 

ratings of record total of 12, veterans’ 

preference subgroup AD to displace an 

employee tenure group III, performance 

summary level ratings of record total of 

12, veterans’ preference subgroup A or 

B). 

* * * * * 

PART 430—PERFORMANCE 

MANAGEMENT 

Subpart B—Performance Appraisal for 

General Schedule, Prevailing Rate, and 

Certain Other Employees 

■ 6.Revise § 430.208(d)(4) to read as 

follows: 

§ 430.208 Rating Performance. 

* * * * * 

(d) * * * 

(4) The designation of a summary 

level and its pattern shall be used to 

provide consistency in describing 

ratings of record and as a reference 

point for applying other related 

regulations, excluding enhanced 

performance values under § 351.503(d) 

and (f) of this chapter. 

§ 430.208 [Amended] 

■ 7. In § 430.208, remove paragraph 

(d)(5). 

[FR Doc. 2020–26347 Filed 12–16–20; 8:45 am] 

BILLING CODE 6325–39–P 

NUCLEAR REGULATORY 

COMMISSION 

10 CFR Part 26 

[Docket Nos. PRM–26–3; NRC–2009–0482, 

PRM–26–5; NRC–2010–0304] 

Fitness-for-Duty Program 

AGENCY: Nuclear Regulatory 

Commission. 

ACTION: Petitions for rulemaking; denial. 

SUMMARY: The U.S. Nuclear Regulatory 

Commission (NRC) is denying two 

petitions for rulemaking related to the 

fitness-for-duty program that were 

docketed as PRM–26–3, ‘‘Professional 

Reactor Operator Society—Fitness-forDuty Programs,’’ and PRM–26–5, 

‘‘Nuclear Energy Institute—Fitness-forDuty Programs,’’ due to the 

discontinuation of the associated 

rulemaking. 

DATES: As of December 17, 2020, the 

dockets for PRM–26–3 and PRM–26–5 

are closed. 

ADDRESSES: Please refer to Docket IDs 

NRC–2009–0482 or NRC–2010–0304 

when contacting the NRC about the 

availability of information regarding this 

document. You may obtain publiclyavailable information related to this 

document using any of the following 

methods: 

• Federal Rulemaking Website: Go to 

https://www.regulations.gov and search 

for Docket IDs NRC–2009–0482 or NRC– 

2010–0304. Address questions about 

NRC dockets to Dawn Forder; 

telephone: 301–415–3407; email: 

Dawn.Forder@nrc.gov. For technical 

questions, contact the individuals listed 

in the FOR FURTHER INFORMATION

CONTACT section of this document. 

• NRC’s Agencywide Documents 

Access and Management System 

(ADAMS): You may obtain publiclyavailable documents online in the 

ADAMS Public Documents collection at 

https://www.nrc.gov/reading-rm/ 

adams.html. To begin the search, select 

‘‘Begin Web-based ADAMS Search.’’ For 

problems with ADAMS, please contact 

the NRC’s Public Document Room (PDR) 

reference staff at 1–800–397–4209, 301– 

415–4737, or by email to pdr.resource@

nrc.gov. The ADAMS accession number 

for each document referenced (if it is 

available in ADAMS) is provided the 

first time that it is mentioned in the 

SUPPLEMENTARY INFORMATION section. 

• Attention: The PDR, where you may 

examine and order copies of public 

documents, is currently closed. You 

may submit your request to the PDR via 

email at PDR.Resource@nrc.gov or call 

1–800–397–4209 between 8:00 a.m. and 

4:00 p.m. (EST), Monday through 

Friday, except Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Yanely Malave, Office of Nuclear 

Material Safety and Safeguards, U.S. 

Nuclear Regulatory Commission, 

Washington, DC 20555–0001; telephone: 

301–415–1519, email: Yanely.MalaveVelez@nrc.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

Title 10 of the Code of Federal 

Regulations (10 CFR) 2.802, ‘‘Petition 

for rulemaking—requirements for 

filing,’’ provides an opportunity for any 

interested person to petition the 

Commission to issue, amend, or rescind 

any regulation in 10 CFR chapter I. The 

NRC received the following petitions for 

rulemaking (PRMs) regarding 10 CFR 

part 26, ‘‘Fitness for Duty Programs,’’ 

subpart I, ‘‘Managing Fatigue,’’ from the 

Professional Reactor Operator Society 

(PROS) and the Nuclear Energy Institute 

(NEI) after the NRC issued a final rule 1

in 2008 that substantially revised its 

fitness for duty requirements: 

(1) PRM–26–3 Submitted by Robert N. 

Meyer on Behalf of PROS 

On October 16, 2009, Mr. Robert N. 

Meyer, on behalf of PROS, an 

organization of operations personnel 

employed at nuclear power plants 

throughout the United States, submitted 

a PRM requesting that the NRC amend 

its fatigue management regulations to