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. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

25623

Vol. 65, No. 86

Wednesday, May 3, 2000

OFFICE OF PERSONNEL

MANAGEMENT

5 CFR Part 351

RIN 3206–AI99

Reduction in Force Notices

AGENCY: Office of Personnel

Management.

ACTION: Final regulation.

SUMMARY: The Office of Personnel

Management (OPM) is issuing a final

rule to remove the regulations requiring

120 day reduction in force notices for

certain Department of Defense

employees because the implementing

statute is expiring.

EFFECTIVE DATE: This regulation is

effective on June 2, 2000.

FOR FURTHER INFORMATION, CONTACT:

Jacqueline Yeatman on (202) 606–0960,

FAX (202) 606–2329, TDD (202) 606–

0023 or by email at jryeatma@opm.gov

SUPPLEMENTARY INFORMATION: The

regulations in paragraph (a)(2) of section

351.801 of 5 CFR part 351 were

published on June 8, 1993,

implementing section 4433 of the

National Defense Authorization Act for

Fiscal Year 1993 (Pub. L. 102–484). The

statute provided that Department of

Defense employees who received

reduction in force notices between

January 20, 1993, and January 31, 1998,

were entitled to a 120 day notice period

if a significant number of employees

were affected. Later, Public Law 103–

337 was enacted. This law extended the

requirement for a longer notice period

until January 31, 2000. Because this

section of the Public Law is expiring,

OPM is deleting the regulatory material

in 5 CFR part 351 that contains these

requirements.

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 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, the Office of Personnel

Management is amending 5 CFR part

351 as follows:

PART 351—REDUCTION IN FORCE

1. The authority citation for part 351

continues to read as follows:

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

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

2965.

Subpart H—Notice to Employee

2. In § 351.801, paragraph (a)(1) is

revised, paragraph (a)(2) is removed,

paragraph (a)(3) is redesignated as

paragraph (a)(2), and paragraph (b) is

revised to read as follows:

§ 351.801 Notice period.

(a)(1) Each competing employee

selected for release from a competitive

level under this part is entitled to a

specific written notice at least 60 full

days before the effective date of release.

* * * * *

(b) When a reduction in force is

caused by circumstances not reasonably

foreseeable, the Director of OPM, at the

request of an agency head or designee,

may approve a notice period of less than

60 days. The shortened notice period

must cover at least 30 full days before

the effective date of release. An agency

request to OPM shall specify:

(1) The reduction in force to which

the request pertains;

(2) The number of days by which the

agency requests that the period be

shortened;

(3) The reasons for the request; and

(4) Any other additional information

that OPM may specify.

* * * * *

3. In § 351.805, paragraph (a) is

revised to read as follows:

§ 351.805 New notice required.

(a) An employee is entitled to a

written notice of at least 60 full days if

the agency decides to take an action

more severe than first specified.

* * * * *

[FR Doc. 00–10988 Filed 5–2–00; 8:45 am]

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MERIT SYSTEMS PROTECTION

BOARD

5 CFR Part 1201

Practices and Procedures

AGENCY: Merit Systems Protection

Board.

ACTION: Final rule.

SUMMARY: The Merit Systems Protection

Board (MSPB or the Board) is amending

its rules of practice and procedure with

respect to the notice an agency must

provide when it takes an appealable

action against an employee who has

both a right to appeal to the Board and

a right to file a grievance under a

grievance procedure. The amendment is

intended to ensure that such an

employee understands the

consequences of making a choice

between the MSPB appeal procedure

and the grievance procedure. It also is

intended to ensure that, where an

employee may pursue both procedures

(as in the case of preference eligible

employees of the United States Postal

Service), the employee understands that

the Board’s time limit for filing an

appeal will not be modified or extended

if the employee files a grievance. The

amendment also clarifies that preference

eligible employees of the United States

Postal Service and other employees

excluded from the coverage of the

Federal Labor-Management Relations

Statute may not seek Board review of a

final decision on a grievance.

EFFECTIVE DATE: May 3, 2000.

FOR FURTHER INFORMATION CONTACT:

Robert E. Taylor, Clerk of the Board,

(202) 653–7200.

SUPPLEMENTARY INFORMATION: On

November 1, 1999, the Board published

a proposal to amend its rules of practice

and procedure at 5 CFR 1201.21(d),

regarding the notice an agency must

provide when it takes an appealable

action against an employee who has

both a right to appeal to the Board and

25624 Federal Register / Vol. 65, No. 86 / Wednesday, May 3, 2000 / Rules and Regulations

a right to file a grievance under a

grievance procedure, and 5 CFR

1201.154(d), regarding the procedures

for seeking Board review of a final

decision on a grievance (64 FR 58798).

The proposed rule requested public

comments and allowed 60 days, until

January 3, 2000, for receipt of

comments.

Comments were received from the

Special Counsel, a Federal agency, a

labor organization representing Postal

Service employees, and a private

practitioner who represents appellants

before MSPB. The Special Counsel, the

labor organization, and the practitioner

all supported the proposed rule, and the

Federal agency had no objection to it.

Both the Special Counsel and the

practitioner suggested that the Board

further amend the requirements for

agency notices at 5 CFR 1201.21(d). The

practitioner suggested that the Board

require agencies to spell out the options

for ‘‘other elections’’ to ‘‘make sure that

each filing option and its preclusive

effect is covered in the agency notice.’’

The Special Counsel suggested that the

Board require agencies to include notice

of the right to file a prohibited

personnel practice complaint with the

Special Counsel and the requirement for

making an election among a grievance,

an appeal to MSPB, and a complaint to

the Special Counsel.

Each of these suggestions would

expand the proposed amendment to 5

CFR 1201.21(d) beyond what it was

originally meant to do—require agencies

to spell out the options available

between the MSPB appeal procedure

and any applicable grievance procedure,

and the consequences of choosing one

or the other. The proposed rule was

directed at a problem with notices

identified in Board cases involving

Postal Service employees. The Board

has not identified a pattern of cases

where such problems occur with any

regularity with other agencies or in

situations other than where an appellant

has a right to challenge an agency

personnel action under both the MSPB

appeal procedure and a grievance

procedure.

In particular cases, statutory

complaint procedures other than the

MSPB appeal procedure also may be

available, depending on the nature of

the claims raised by the appellant. For

example, an appellant who claims

prohibited discrimination may be able

to file a complaint under the regulations

of the Equal Employment Opportunity

Commission. An appellant who claims

that the agency’s action was the result

of a prohibited personnel practice may

be able to file a complaint with the

Special Counsel. An appellant who

claims that the action was the result of

an unfair labor practice may be able to

pursue the matter before the Federal

Labor Relations Authority.

Imposing a generally applicable allinclusive notice requirement that would

cover all of the possible situations that

could occur would place a major burden

on agencies to somehow anticipate all

options for all claims that an employee

might raise. It would also produce more

complex notices that could prove

extremely confusing to appellants and

result in filings under one or more

statutory procedures that do not apply

to the appellant’s particular case.

Therefore, the Board is amending 5 CFR

1201.21(d) as proposed, without change.

The Federal agency asked if the Board

could provide specific language for

agencies to use in their notices. We

believe that the regulations sufficiently

spell out the requirements for agency

notices and that further advice goes

beyond our adjudicatory role.

The practitioner also suggested that

the references to 5 U.S.C. 7121 and 7702

in 5 CFR 1201.154(d) be expanded to

include explanations of what the

statutes require and how they operate.

While it is impractical for the Board to

spell out in detail the grievance

procedures set out in 5 U.S.C. 7121, the

Board agrees that 5 CFR 1201.154(d) can

be clarified. This subsection is amended

in the final rule to specify that it applies

where an appellant, other than an

employee of the Postal Service or an

employee otherwise excluded from the

Federal Labor-Management Relations

Statute, requests Board review of a final

decision on a grievance and alleges

prohibited discrimination before the

Board. The amendment also includes a

clarifying statement that a final decision

on a grievance is usually the decision of

an arbitrator. As to explaining the mixed

case procedures of 5 U.S.C. 7702, this is

accomplished by subpart E of part 1201,

of which section 1201.154 is a part.

The Board is publishing this rule as

a final rule pursuant to 5 U.S.C. 1204(h).

List of Subjects in 5 CFR Part 1201

Administrative practice and

procedure, Civil rights, Government

employees.

Accordingly, the Board amends 5 CFR

part 1201 as follows:

PART 1201—PRACTICES AND

PROCEDURES

1. The authority citation for part 1201

continues to read as follows:

Authority: 5 U.S.C. 1204 and 7701, unless

otherwise noted.

2. Amend § 1201.21 by revising

paragraph (d) to read as follows:

§ 1201.21 Notice of appeal rights.

* * * * *

(d) Notice of any right the employee

has to file a grievance, including:

(1) Whether the election of any

applicable grievance procedure will

result in waiver of the employee’s right

to file an appeal with the Board;

(2) Whether both an appeal to the

Board and a grievance may be filed on

the same matter and, if so, the

circumstances under which proceeding

with one will preclude proceeding with

the other, and specific notice that filing

a grievance will not extend the time

limit for filing an appeal with the Board;

and

(3) Whether there is any right to

request Board review of a final decision

on a grievance in accordance with

§ 1201.154(d).

3. Amend § 1201.154 by revising the

introductory text of paragraph (d) to

read as follows:

§ 1201.154 Time for filing appeal; closing

record in cases involving grievance

decisions.

* * * * *

(d) This paragraph does not apply to

employees of the Postal Service or to

other employees excluded from the

coverage of the federal labormanagement relations laws at chapter

71 of title 5, United States Code. If the

appellant has filed a grievance with the

agency under a negotiated grievance

procedure, he may ask the Board to

review the final decision on the

grievance if he alleges before the Board

that he is the victim of prohibited

discrimination. Usually, the final

decision on a grievance is the decision

of an arbitrator. A full description of an

individual’s right to pursue a grievance

and to request Board review of a final

decision on the grievance is found at 5

U.S.C. 7121 and 7702. The appellant’s

request for Board review must be filed

within 35 days after the date of issuance

of the decision or, if the appellant

shows that the decision was received

more than 5 days after the date of

issuance, within 30 days after the date

the appellant received the decision. The

appellant must file the request with the

Clerk of the Board, Merit Systems

Protection Board, Washington, DC

20419. The request for review must

contain:

* * * * *

Dated: April 26, 2000.

Robert E. Taylor,

Clerk of the Board.

[FR Doc. 00–10959 Filed 5–2–00; 8:45 am]

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