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

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Rules and Regulations Federal Register

62495

Vol. 62, No. 226

Monday, November 24, 1997

OFFICE OF PERSONNEL

MANAGEMENT

5 CFR Parts 351, 430, and 531

RIN 3206–AH32

Reduction in Force and Performance

Management

AGENCY: Office of Personnel

Management.

ACTION: Final rule.

SUMMARY: The Office of Personnel

Management (OPM) is issuing final

regulations that enhance the

opportunity for Federal employees to

receive reduction in force retention

service credit based on their actual job

performance. The regulations also give

agencies with employees who have been

rated under different patterns of

summary rating levels a mechanism to

take this into account when providing

employees additional retention service

credit for reduction in force. These

regulations also clarify certain other

retention rights, including the coverage

of employees serving under term

appointments.

DATES: Effective date: December 24,

1997. Compliance dates: Subject to the

requirements of 5 U.S.C. 7116(a)(7),

agencies may implement revised

§§ 351.504 and 351.803(a), at any time

between December 24, 1997 and

October 1, 1998. For reduction in force

actions effective between December 24,

1997 and September 30, 1998, agencies

may use either §§ 351.504 and

351.803(a) effective December 24, 1997

or the prior §§ 351.504 and 351.803(a) in

5 CFR part 351 (January 1, 1997,

edition).

FOR FURTHER INFORMATION CONTACT:

Thomas A. Glennon, Jacqueline

Yeatman, or Edward P. McHugh (part

351); (202) 606–0960, FAX (202) 606–

2329; or Barbara Colchao or Doris

Hausser (parts 430 and 531); (202) 606–

2720, FAX (202) 606–2395.

SUPPLEMENTARY INFORMATION: On

February 4, 1997, OPM issued proposed

regulations concerning reduction in

force and performance management.

These proposed changes were designed

to enhance the opportunity for Federal

employees to receive reduction in force

retention credit based on their actual job

performance. They proposed changes to

the crediting procedures used when

employees are missing performance

ratings, as well as giving agencies the

authority to vary performance credit in

reduction in force to take into account

ratings given under different summary

level patterns.

We received comments from 21

agencies, 4 unions, and 3 individuals.

Not every commenter mentioned every

proposed provision. The key changes

OPM proposed in the regulations are

summarized below, along with a

summary of the comments received on

that particular proposal.

Providing Retention Service Credit

When Employees in the Same

Reduction in Force Competitive Area

Have Been Rated Under More Than

One Pattern of Summary Rating Levels

On August 23, 1995, OPM issued final

regulations, at 60 FR 43936, giving

agencies the option to determine which

of eight permissible patterns of

summary rating levels to use for their

performance appraisal programs. As a

result, changes in the crediting of

performance in reduction in force were

necessary because this flexibility in the

design of performance appraisal

programs can affect employees’ relative

retention standing for reduction in

force. The proposed regulations revised

5 CFR 351.504 to require an agency to

take into account different patterns of

summary rating levels when providing

employees additional retention service

credit in reduction in force competition

based on their performance.

Under the proposed regulations, an

agency with employees in a reduction in

force competitive area who have been

rated under different patterns of

summary rating levels must decide how

many years of retention service credit

within the allowable range of 12 to 20

years to assign to particular summary

rating levels in their patterns. The

specific method selected by the agency

to provide retention service credit for

performance will of necessity be

specific to the reduction in force

competitive area as the agency takes

into account the combination of rating

patterns used and the relative numbers

of employees rated under each pattern.

If an agency has reduction in force

competitive areas in which all employee

ratings of record to be credited were

given under the same pattern of

summary levels, it is required to follow

the current regulations for crediting

performance in a reduction in force

which now appear in paragraph (d) of

section 351.504.

In applying the proposed regulations,

agencies must treat employees within

the reduction in force competitive area

in a uniform and consistent manner. An

agency carrying out a reduction in force

may provide different amounts of

additional retention service credit for

ratings of record received in an

employee’s former agency than were

provided by that former organization.

The majority of comments received on

this proposal were very positive. Most

of those who commented felt it was a

necessary and logical outgrowth of

performance rating flexibility that

would be helpful to both agencies and

employees. This proposal was

especially well-received by those

considering, or already using,

alternative performance appraisal

programs such as a 2-level (‘‘Pass/Fail’’)

program. Some agencies requested even

greater flexibility to address what they

see as potential inequities when

employees in different competitive areas

are rated under different appraisal

programs, even if there is no

inconsistency within each competitive

area. This was deemed especially

crucial to agencies having various

offices or components using different

summary rating patterns.

One commenter voiced the concern

that employees rated as ‘‘Fully

Successful’’ under a two-level program

could actually be performing at very

different levels. Another suggested that

the proposal be modified in order to

prevent an agency from giving less

credit to an employee’s ratings of record

from their previous agency than to the

agency’s ‘‘own’’ ratings. Several other

commenters suggested that specific

mandates be established on how this

flexibility is to be used.

OPM has carefully considered these

suggestions and decided not to adopt

them. We believe that many of these

concerns are rooted in decisions about
62496 Federal Register / Vol. 62, No. 226 / Monday, November 24, 1997 / Rules and Regulations

using various types of performance

appraisal programs in the first place,

and most would be addressed by the

requirement to provide uniformity and

consistency within each competitive

area. For example, an agency assigning

16 years of credit to a ‘‘fully successful’’

rating of record earned under a twolevel program must give ALL employees

who earned a ‘‘fully successful’’ rating

of record in a two-level program this

credit, no matter what agency or

organization actually issued the rating.

Granting additional flexibility, by

definition, allows for decision-making

that some may disagree with.

Alternatively, an agency is free to

choose a crediting system that mirrors

the current 12/16/20 year pattern

required for use in single-rating-pattern

situations (they are required to examine

the situation when multiple rating

patterns exist, but there is no

requirement to adopt any particular

crediting method). In addition, agencies

concerned about consistency are free to

establish their own agencywide policies

on how this flexibility will be used.

One commenter suggested that no

additional credit beyond 12 years be

provided for performance above the

level of ‘‘Fully Successful’’. We have not

adopted this suggestion since it goes

beyond the scope of the proposal and

because the new regulations would give

agencies the flexibility to assign credit

in this way if they choose, as long as

ratings of record are assigned under

more than one summary pattern in the

competitive area.

Extending the ‘‘look-back’’ period to 6

years

This element of the proposal

addressed the circumstance where

employees have received fewer than

three actual ratings of record in the last

4 years, which could occur due to a

variety of circumstances. Current

regulations require the substitution of

an assumed rating of ‘‘Fully Successful’’

for each missing rating of record. To

minimize the use of assumed ratings

and to maximize the extent to which

additional retention service credit is

based on actual job performance, OPM

proposed to lengthen the period of time

from which ratings of record are taken

into account from 4 years to 6 years

prior to the reduction in force. This

change would have been phased in to

allow agencies time to change their

recordkeeping procedures.

Several of those who commented

supported this proposal, believing that

the potential for increasing the use of

actual performance appraisals earned by

employees outweighed the additional

record-keeping requirements it would

impose on agencies. Some even

suggested that we modify the proposal

to allow agencies to go back longer than

6 years when necessary. However, the

majority of commenters disagreed with

the proposed lengthening of the ‘‘lookback’’ period from 4 years to 6 years,

even with the phase-in provisions. The

objections centered on the view that a

6-year-old appraisal is too dated to serve

as an accurate indicator of current

employee performance, and that

allowing older appraisals to be used in

reduction in force might discourage

supervisors from preparing current

appraisals when required. Some were

also concerned that these additional

administrative requirements were

unduly burdensome, especially in light

of the current emphasis on

simplification, paperwork reduction,

and streamlining. We have considered

these comments, as well as the

possibility of providing agencies with

flexibility to determine what the length

of their ‘‘look-back’’ period should be

for specific reductions in force. We

concluded that the significant

additional administrative requirements

resulting from a 6-year ‘‘look-back’’ do

not justify the results, especially since

the other changes provided for in this

regulatory package would significantly

reduce the number of assumed ratings.

For these reasons, we concluded that

the current ‘‘look-back’’ period of 4

years should be retained.

Averaging actual ratings received if

fewer than three

To further enhance the use of actual

performance in determining reduction

in force service credit, OPM proposed to

remove the requirement to fill in

missing ratings of record with assumed

‘‘fully successful’’ ratings when an

employee has received only one or two

actual ratings of record. Under the

proposal, the actual rating(s) of record

available would serve as the sole basis

of the employee’s credit, and no

assumed ratings would be used.

Consequently, if an employee has

received only two actual ratings of

record during this period, the value

assigned to each rating would be added

together and divided by two to

determine the amount of additional

retention service credit.

Among those who commented on this

proposal, there was an almost equal

number of those who supported it and

those who did not. Most of those

opposing the proposed change cited the

greater weight that would necessarily be

placed on the one or two actual ratings

of record received. One commenter was

concerned that supervisors would be

less likely to complete ratings of record

as a result of this proposal. A number

of commenters, however, supported this

proposal because it simplifies the

process and allows an employee’s actual

demonstrated performance to take the

place of an artificially prescribed level

of credit (assumed ‘‘Fully Successful’’).

In considering the comments received

on this issue, we were persuaded that

this change would serve to simplify the

procedure and would increase the

emphasis on actual performance, a

stated goal of the proposed regulations.

Therefore, we are adopting this proposal

in the final regulations.

Crediting performance for employees

with no actual ratings

OPM had proposed two methods of

providing performance credit for

reduction in force in cases where an

employee would have no actual ratings

of record at all. Under the proposed

regulations, an employee with at least

one year of current continuous service

would be given the additional retention

service credit for the most common, or

‘‘modal’’, summary rating level, as

defined in 5 CFR 351.203, for the

summary level pattern that applies to

the employee’s position at the time of

the reduction in force. The proposal

would allow agencies to determine the

modal rating using ratings of record in

the competitive area, in a larger

subdivision of the agency, or

agencywide, as long as the applicable

modal rating(s) was applied uniformly

and consistently within the competitive

area to all employees with no ratings of

record.

Under the proposal, the modal rating

would not be used for employees who

have completed less than one year of

current continuous service. Instead,

additional retention service credit

would be given based on a Level 3

(Fully Successful or equivalent) rating

of record under the summary level

pattern that applies to the employee’s

position at the time of reduction in

force.

Those who commented negatively on

this proposal disliked the idea of using

a modal rating because it did not

represent performance actually

demonstrated by the employee. Some

felt the use of a modal rating was

arbitrary and unfair, and potentially

vulnerable to appeal or other challenge,

while others saw it as more fair to

employees than an assumed ‘‘fully

successful’’ rating that now falls below

the Governmentwide average rating.

Several agencies were also concerned

with how this requirement would be

incorporated into existing automated

systems.
Federal Register / Vol. 62, No. 226 / Monday, November 24, 1997 / Rules and Regulations 62497

One commenter suggested that the

regulations be revised to require that all

employees with at least one year of

service must have a rating of record

before a reduction in force can be

conducted. We have not adopted this

suggestion because we feel it is

impossible to require a rating of record

in all circumstances, given the various

rating cycle dates and other

circumstances that can occur.

One of those who commented

suggested that employees who have

received no ratings of record should

receive no performance credit for

reduction in force. We have not adopted

this suggestion because we believe it

unfairly and severely penalizes an

employee who has no ratings of record

due to factors completely outside his/

her control. We believe that some

reasonable and fair method of

constructing performance credit is

necessary to deal with these

circumstances.

It is important to note that the modal

rating would only be used in cases

where the employee has no ratings of

record of his/her own to credit. Since no

rating of record exists, some form of

‘‘assumed’’ rating is the only recourse

available. Because the modal rating is

the summary level that was given most

often to employees in the organization

conducting the reduction in force, we

believe it is the best way to assign credit

with the least disadvantage to an

individual employee who has no rating

of record reflecting his/her actual

performance.

Much of the opposition to the modal

rating proposal focused on the

complexity for personnelists in

administering two different types of

formulae based on length of service (less

than one year means use assumed

‘‘Fully Successful’; more than one year

requires tabulation of modal rating).

Some saw this as contradictory to

ongoing simplification initiatives. In

addition, several commenters pointed

out that this distinction could result in

an employee with 364 days of service

being treated differently (in terms of

performance credit for reduction in

force) than another employee with 366

days of service. We agree that the

distinction based on length of service

adds greater complexity to the process,

and we have therefore eliminated this

distinction in the final regulations.

Instead, the modal rating will be used to

grant performance credit in reduction in

force for all employees who have no

ratings of record. We feel this better

supports the principles of uniformity

and consistency in the reduction in

force treatment of employees.

Several commenters requested that

OPM designate the basis used by

agencies to determine their modal

ratings (i.e., agencywide; agency

subdivision; or competitive area). They

also asked that agencies not be allowed

to change this basis once it is selected

without OPM and/or union approval.

However, agencies have different data

systems and not all will have a great

deal of flexibility in terms of tabulating

modal ratings. Some may only have

agencywide performance appraisal data

to work with. We felt that it was

necessary to preserve this flexibility for

determining the basis used for

tabulating modal ratings to ensure that

all agencies are able to implement this

requirement. However, we would

encourage agencies to consider making

this determination in partnership with

employees and their representatives.

Use of Non-430 Ratings in Reduction in

Force

OPM proposed language in the

revised section 351.504 that would

require agencies to use all ratings of

record given to employees for assigning

additional retention service credit

during a reduction in force, including a

performance evaluation given to an

employee under an appraisal system not

covered by the provisions of 5 CFR part

430, subpart B, if it meets the conditions

specified in the new paragraph (c) of

section 430.201.

Those who commented in support of

this proposal felt it was appropriate to

give credit for such ratings in a

reduction in force if they were

equivalent to those given under part

430.

One commenter disagreed with the

proposal, believing it would be too

difficult for agencies to establish the

equivalent summary pattern and rating

level for these non-430 ratings. We have

considered this objection; however, we

feel that agencies should be able to

make these determinations with help

from the agency that gave the rating

and/or members of OPM’s performance

management staff.

Implementation Date Issues

(1) Performance in Retention Service

Credit Determinations

The new agency authority to

determine retention service credit when

employees in a competitive area are

rated under multiple rating patterns

described in § 351.504(e) would apply

only to ratings of record that are put on

record, as defined in paragraph (b)(3) of

§ 351.504, on or after October 1, 1997.

The agency credits any ratings of record

put on record on or before September

30, 1997, based on the Governmentwide

12-, 16-, and 20-year formula for

additional retention service credit

currently in effect.

Agencies were divided on their

preference for which ratings of record

could be assigned credit using the new

flexibility. While some wanted to be

able to establish credit for ratings of

record given since 1995 (when

performance management was

deregulated), others wished to establish

credit only for ratings of record given

under cycles begun after October 1,

1997. OPM originally proposed that the

flexibility would apply to ratings of

record put on record on or after October

1, 1997, and has decided to retain this

provision in the final regulation.

A related issue was the effective date

of the regulations and its effect on the

implementation of some of the

provisions, particularly those affecting

the flexible assignment of service credit

and situations where fewer than three

ratings of record are available. Concerns

such as the lead time required for

changes in the automation of RIF

processing programs, and the need to

meet collective bargaining requirements

prior to the implementation of these

regulations were also raised during the

comment process. OPM originally

proposed implementation on October 1,

1997. We have considered the

suggestions received on this issue and

have determined that overall fairness is

best managed through giving agencies

the flexibility to implement the

provisions of Sections 351.504

(crediting performance) and 351.803

(notice of eligibility for reemployment

and other placement assistance), at any

time between the effective date of these

regulations and October 1, 1998.

Agencies are required to apply the

provisions used in a uniform and

consistent manner to all employees in a

given RIF competitive area.

When crediting performance in a

reduction in force, agencies would have

the option to implement immediately as

of the effective date of these regulations

the provisions for establishing credit

when ratings of record were given under

mixed summary level patterns

(351.504(e)) and the use of the modal

value for missing ratings as well as

averaging only actual ratings of record

found during the 4-year ‘‘look-back’’

period (351.504(c)). At its discretion, an

agency could decide to delay

implementation of these provisions

until no later than October 1, 1998, and

continue to use the performance

crediting provisions in the current

§ 351.504 (i.e., those in effect on January

1, 1997).
62498 Federal Register / Vol. 62, No. 226 / Monday, November 24, 1997 / Rules and Regulations

The effect of the provisions in

paragraphs 351.504 (b) and (d) remain

unchanged by the new regulations.

When applying paragraph 351.504(a),

the context created by the new

definition for rating of record and other

regulatory changes will permit the use

of non-430 ratings under the conditions

specified even when an agency is using

the older version of 5 CFR 351.504.

This gives agencies able to proceed

immediately the opportunity to do so,

without forcing others that need time to

complete more extensive preparations

into an unrealistic time frame. However,

for reduction in force actions effective

after September 30, 1998, the new

provisions for crediting mixed-pattern

ratings of record and handling situations

where ratings are missing must be

applied by all agencies.

(2) Implementation of Provisions During

Ongoing Reductions

Several commenters mentioned their

concern that ongoing reductions in force

would be disrupted by the requirement

to implement these provisions. Revising

the procedures for handling missing

ratings of record and crediting

performance under multiple rating

patterns could result in changed

reduction in force outcomes, new

notices, and additional delays due to

notice period requirements. We agree

that this would prove unnecessarily

disruptive to both agencies and

employees. However, we believe that

giving agencies the option to implement

the provisions of sections 351.504 and

351.803 at any time up until October 1,

1998, will allow them to take into

account any upcoming reduction in

force activity and plan accordingly.

Technical Amendments

OPM proposed a number of technical

changes in parts 351, 430 and 531,

which served to clarify existing

regulations in various areas. These

included redefinition of rating of record

under part 351 to refer to the part 430

definition, provisions for handling

employees with a written notice of

pending action under part 752 similarly

to those with action pending under part

432, changes to the critical element

definition, barring non-critical elements

in two-level appraisals, and

clarifications of: appraisal period,

acceptable level of competence

determinations, competitive area,

competitive level, procedures for

determining grade intervals for

assignment, expiration and amendment

of reduction in force notices, assignment

rights optionally provided to excepted

service employees, and coverage of term

employees under retention subgroups.

We received comments on some of

these proposed clarifications. One

suggested rewording of the definition of

rating of record to better reflect that this

rating belongs to the employee rather

than the agency. We agree and have

adopted this suggestion.

Several commenters asked what date

should be used as the effective date of

a rating of record. Perhaps contributing

to their confusion are changes to the

way ratings of record are reported to the

Central Personnel Data File. While a

rating of record is a personnel action,

OPM no longer requires that it be

reported separately with its own distinct

nature of action code (009). Rating of

record information is now transmitted

to OPM via other standard reporting

procedures. When a separate nature of

action code was used, the previous

reporting procedures specified that the

effective date for a rating of record was

the ending date of the appraisal period

to which the rating applied. The new

procedures capture this same

information as an isolated data element

and eliminate the need for separate

processing of many thousands of

actions. It is OPM’s view that the ending

date of the applicable appraisal period

is the effective date of the rating of

record, and this date should be used to

determine whether or not a rating of

record falls within the 4-year ‘‘lookback’’ period.

Section 5 CFR 351.402(b) clarifies

OPM’s longstanding policy on the

minimum standard for a reduction in

force competitive area. All of the

comments on this proposed revision

supported the change, and the proposed

regulation is adopted without further

modification.

To conduct a reduction in force,

section 5 CFR 351.402(a) provides that

the agency must establish the applicable

competitive area that is the boundary

within which employees compete for

retention under reduction in force

procedures.

Section 5 CFR 351.402(b) provides

that employees in a competitive area

compete for retention under OPM’s

reduction in force regulations only with

other employees in the same

competitive area. Employees do not

compete for retention with employees of

the agency in another competitive area.

Section 5 CFR 351.402(b) provides

that the agency must define each

competitive area solely in terms of

organizational unit and geographical

location. The competitive area then

includes all employees within the

organizational unit and geographical

location that is included in the

competitive area definition. Each

employee competes with all other

employees in the competitive area for

positions under OPM’s retention

regulations. There is no minimum or

maximum number of employees in a

competitive area. Also, in any one

reduction in force, an agency may not

use one competitive area for the first

round of competition and a different

competitive area for second rounds of

competition.

Section 5 CFR 351.402(b) clarifies that

the minimum competitive area for any

agency component is a subdivision of

the agency within the local commuting

area that is under separate

administration. An agency may

establish separate competitive areas for

different components in the same local

commuting area if each component is

under separate administration, which

includes that each is independent of the

other in operation, work function, and

staff.

As used for purposes of establishing

a minimum competitive area consistent

with section 5 CFR 351.402(b),

‘‘separate administration’’ is the

administrative authority to take or direct

personnel actions (i.e., the authority to

establish positions, abolish positions,

assign duties, etc.) rather than the

issuance or processing of the documents

by which these decisions are effected.

This separate administration is

evidenced by the agency’s

organizational manual and delegations

of authority that document where, in the

organization, final authority rests to

make these decisions. (The competitive

area standard also recognizes that many

agencies retain certain personnel-related

actions such as classification authority

or final approval of higher-graded

positions to a central authority above

the organizational standard required for

a minimum competitive area).

The same standard is used for a

minimum competitive area in a local

commuting area in both a headquarters

organization or field component. Former

references in 5 CFR 351.402(b) to

organizational units that could comprise

a minimum competitive area in a

headquarters organization or field

component were examples of where

separate administration is often found

in agencies. These references were

deleted in final 5 CFR 351.402(b) to

clarify that the same minimum

competitive area standard is applicable

whether the organizational unit is

headquarters, a field activity, a duty

station, or other applicable organization.

Under 5 CFR 351.402(b), an agency

may establish a competitive area that is

larger than the minimum standard.

However, a competitive area may not be

smaller than the minimum standard.
Federal Register / Vol. 62, No. 226 / Monday, November 24, 1997 / Rules and Regulations 62499

The fact that several activities may be

serviced by the same personnel office

does not, of itself, require that they be

placed in the same competitive area.

The personnel office merely processes

personnel actions rather than having

final responsibility to make decisions on

whether to establish positions, abolish

positions, assign duties, etc.

Another commenter felt that the

proposal did not go far enough in

dealing with employees who have

received written decisions under part

752, and suggested that those employees

be excluded from reduction in force

competition altogether. There is,

however, no basis in law to eliminate

the right of these employees to remain

in reduction in force competition until

they are actually removed from Federal

service. Therefore, this suggestion was

not adopted.

OPM had also proposed changes to

the requirements for reduction in force

separation notices to include an

estimate of severance pay if applicable,

and information on benefits available

under new subparts F and G (Career

Transition Assistance Programs) of part

330 of this chapter and from the

applicable State dislocated worker

unit(s), as designated or created under

title III of the Job Training Partnership

Act. To increase placement

opportunities for employees affected by

downsizing, the proposed section also

required that agencies give employees

receiving a reduction in force separation

notice a release to authorize, at their

option, the release of their resumes for

employment referral to State dislocated

worker unit(s) and potential public and

private sector employers. OPM is

developing material for this purpose.

A few commenters were concerned

that these requirements would place a

greater burden on personnel offices and

reduce the emphasis on employee

empowerment that is central to

successful career transition programs.

One felt the role of obtaining

authorization for release of resumes

belonged solely with the placement

coordinator, and that this did not belong

with the reduction in force notice since

placement efforts would already be well

underway by the time reduction in force

notices are issued.

We agree that, ideally, placement

efforts should begin long before

reduction in force notices are issued.

However, this is not always possible.

We have considered these comments

carefully and feel that providing a

release that can be completed entirely at

the employee’s option remains within

the spirit of empowerment and simply

serves as another vehicle for

coordination between Federal

Government and other public and

private employers that will hopefully

aid employees in the transition process.

Many agencies have personnel office

staff who serve in dual roles, both

conducting the reduction in force and

assisting employees in placement. Since

a reduction in force notice is issued to

all employees being separated, it

provides a unique opportunity for the

agency to give employees career

transition information and to ensure

that all employees being separated will

receive it. However, in recognition of

the fact that agencies will need time to

modify their reduction in force notices,

we have made this provision one of

those which may be implemented at any

time between the effective date of these

regulations and October 1, 1998. All

notices issued on or after October 1,

1998, must meet the requirements of

these regulations.

One commenter was concerned that

the severance pay estimate calculation

might be open to challenge if it was later

found to be in error. They suggested

instead that agencies provide

information on how to compute

severance pay and let employees do the

calculations themselves. We have not

adopted this suggestion because we

believe agency-developed severance pay

estimates are much more likely to be

accurate than those done by employees.

Further, we would emphasize that

agencies should clearly indicate that

their severance pay calculations are

merely estimates, as many agencies do

now, but that employees are ultimately

responsible for verifying these

estimates.

Several commenters suggested that we

add a requirement that specific

information on the employee’s

competitive level, including the names

of employees in various levels, be added

to the notice. Information of this type is

normally discussed during reduction in

force counseling sessions between

affected employees and knowledgeable

personnel specialists. Releasing this

type of information in a reduction in

force notice has serious privacy

implications and would not be useful in

isolation, nor would it serve to help the

employee better understand his/her

reduction in force rights without

counseling. Therefore, we have not

adopted this suggestion.

Another commenter questioned the

restriction in the definition of critical

elements to individual performance

only, especially in light of the

workplace trends toward team

performance. We do not disagree with

the observation that team work is

becoming more prevalent in the

workplace and should be captured

when measuring performance. In

recognition of the importance of team

work in many organizations, the

performance management regulations

specifically provide for the use of noncritical elements that can address

performance measured at the team level

and that impact the summary level,

which can be particularly useful in

making performance distinctions above

the Fully Successful (or equivalent)

level. In addition, the regulations permit

the use of critical elements to measure

the individual’s contribution to the

team’s success or failure. However, it

would be inappropriate to allow a single

team failure (i.e., failed team critical

element) to result automatically in every

individual on the team being designated

as Unacceptable when some of the

individual performance within the team

is probably Fully Successful or better.

Critical elements are the cornerstone

of individual accountability in

employee performance. Therefore, they

should not be used to measure

performance over which the employee

is not intended or expected to exercise

individual control or authority. In

addition, there is the prohibition that

non-critical elements cannot be used

with a two-level summary pattern (i.e.,

pass/fail). Organizations that summarize

performance at only two levels can

choose to incorporate additional

performance elements to identify and

measure team accomplishments. We,

therefore, made no change to this

proposal.

One commenter suggested that a

within-grade increase following a delay,

based on the circumstances stated in the

regulations and a subsequent rating of

record of Level 3 or higher, should be

paid retroactively. Because no change

was, or is, proposed to the current

language at 5 CFR 531.409(c)(2)(iii) that

addresses a retroactive within-grade

increase following a delay in the

acceptable level of competence

determination, that paragraph had not

appeared in the proposed regulations as

printed in the Federal Register. Because

that current language will remain in

effect, the commenter’s concern is

already accommodated.

One commenter suggested that

within-grade delay procedures should

be incorporated into agency

performance management plans and,

thereby, be subject to OPM review and

approval. Within-grade delay is

prescribed by regulation because it is a

procedure where Governmentwide

consistency is appropriate. There is no

value added to having OPM review

agency procedures implementing such

uniform regulations. Furthermore, the

Performance Management Plan alluded
62500 Federal Register / Vol. 62, No. 226 / Monday, November 24, 1997 / Rules and Regulations

to is no longer required because, in part,

the 1995 revision was designed to

eliminate needless repetition of

regulatory language. Therefore, this

suggestion was not adopted.

Several other suggestions for minor

wording changes to provide greater

clarification were adopted where we felt

they were warranted. Most of the

requests for clarification or additional

discussion would be more appropriately

handled through individual discussions

between OPM staff and agency

personnelists, which we are happy to

provide upon request. In addition, some

comments were provided that addressed

reduction in force and performance

management issues that were outside

the scope of these proposed regulations,

such as changing the way performance

is used relative to the other reduction in

force factors; these suggestions were not

adopted since they were not pertinent to

the specific proposals made in these

regulations. Suggestions for wording

changes to 5 CFR part 293 were not

adopted because we felt there was no

basis for issuing revised regulations in

this area as long as we were eliminating

the proposal to lengthen the ‘‘lookback’’ period for ratings of record.

To the extent practicable, these

regulations should be implemented by

agencies in partnership with

management and employees’ union

representatives.

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.

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

5 CFR Part 351

Administrative practice and

procedure, Government employees.

5 CFR Part 430

Decorations, medals, awards,

Government employees.

5 CFR Part 531

Government employees, Law

enforcement officers, Wages.

Office of Personnel Management.

Janice R. Lachance,

Acting Director.

Accordingly, OPM is amending parts

351, 430, and 531 of title 5, Code of

Federal Regulations, as follows:

PART 351—REDUCTION IN FORCE

4. The authority citation for part 351

continues to read as follows:

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

5. In § 351.203, the definition of

‘‘Annual Performance rating of record’’

is removed, and the definitions of

Current rating of record, Modal rating,

and Rating of record are added in

alphabetical order, 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 § 351.504(b)(3).

* * * * *

Modal rating is the summary rating

level assigned most frequently among

the actual ratings of record that are:

(1) Assigned under the summary level

pattern that applies to the employee’s

position of record on the date of the

reduction in force;

(2) Given within the same competitive

area, or at the agency’s option within a

larger subdivision of the agency or

agencywide; and

(3) On record for the most recently

completed appraisal period prior to the

date of issuance of reduction in force

notices or the cutoff date the agency

specifies prior to the issuance of

reduction in force notices after which

no new ratings will be put on record.

Rating of record has the meaning

given that term in § 430.203 of this

chapter. For an employee not subject to

5 U.S.C. Chapter 43, or part 430 of this

chapter, it means the officially

designated performance rating, as

provided for in the agency’s appraisal

system, that is considered to be an

equivalent rating of record under the

provisions of § 430.201(c) of this

chapter.

* * * * *

7. In § 351.402, paragraph (b) is

revised to read as follows:

§ 351.402 Competitive area.

* * * * *

(b) A competitive area must be

defined solely in terms of the agency’s

organizational unit(s) and geographical

location, and it must include all

employees within the competitive area

so defined. A competitive area may

consist of all or part of an agency. The

minimum competitive area is a

subdivision of the agency under

separate administration within the local

commuting area.

* * * * *

8. In § 351.403, paragraph (c) is added

to read as follows:

§ 351.403 Competitive level.

* * * * *

(c) An agency may not establish a

competitive level based solely upon:

(1) A difference in the number of

hours or weeks scheduled to be worked

by other-than-full-time employees who

would otherwise be in the same

competitive level;

(2) A requirement to work changing

shifts;

(3) The grade promotion potential of

the position; or

(4) A difference in the local wage

areas in which wage grade positions are

located.

9. In § 351.404, paragraph (a)

introductory text, and paragraph (b)(2),

are revised to read as follows:

§ 351.404 Retention register.

(a) When a competing employee is to

be released from a competitive level

under this part, the agency shall

establish a separate retention register for

that competitive level. The retention

register is prepared from the current

retention records of employees. Upon

displacing another employee under this

part, an employee retains the same

status and tenure in the new position.

Except for an employee on military duty

with a restoration right, the agency shall

enter on the retention register, in the

order of retention standing, the name of

each competing employee who is:

* * * * *

(b) * * *

(2) The agency shall list, at the bottom

of the list prepared under paragraph

(b)(1) of this section, the name of each

employee in the competitive level with

a written decision of removal under part

432 or 752 of this chapter.

10. Section 351.405 is revised to read

as follows:

§ 351.405 Demoted employees.

An employee who has received a

written decision under part 432 or 752

of this chapter to demote him or her

competes under this part from the

position to which he or she will be or

has been demoted.

11. In § 351.501, paragraph (b)(3) is

revised to read as follows:

§ 351.501 Order of retention—competitive

service.

* * * * *

(b) * * *

(3) Group III includes all employees

serving under indefinite appointments,

temporary appointments pending

establishment of a register, status quo

appointments, term appointments, and
Federal Register / Vol. 62, No. 226 / Monday, November 24, 1997 / Rules and Regulations 62501

any other nonstatus nontemporary

appointments which meet the definition

of provisional appointments contained

in §§ 316.401 and 316.403 of this

chapter.

* * * * *

12. Section 351.504 is revised to read

as follows:

§ 351.504 Credit for performance.

Note to § 351.504: Compliance dates:

Subject to the requirements of 5 U.S.C.

Section 7116(a)(7), agencies may implement

revised § 351.504 at any time between

December 24, 1997 and October 1, 1998. For

reduction in force actions effective between

December 24, 1997 and September 30, 1998,

agencies may use either § 351.504 effective

December 24, 1997, or the prior § 351.504 in

5 CFR part 351 (January 1, 1997 edition).

(a) Ratings used. (1) Only ratings of

record as defined in § 351.203 shall be

used as the basis for granting additional

retention service credit in a reduction in

force.

(2) For employees who received

ratings of record while covered by part

430, subpart B, of this chapter, those

ratings of record shall be used to grant

additional retention service credit in a

reduction in force.

(3) For employees who received

performance ratings while not covered

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

and part 430, subpart B, of this chapter,

those performance ratings shall be

considered ratings of record for granting

additional retention service credit 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.

(b)(1) An employee’s entitlement to

additional retention service credit for

performance 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 (b)(2) and (c) of this section.

(2) To provide adequate time to

determine employee retention standing,

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 for

purposes of this subpart. When a cutoff

date is used, an employee will receive

performance credit for the three most

recent ratings of record received during

the 4-year period prior to the cutoff

date.

(3) To be creditable for purposes of

this subpart, a rating of record 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 awarding of additional

retention service credit based on

performance for purposes of this subpart

must be uniformly and consistently

applied within a competitive area, and

must be consistent with the agency’s

appropriate issuance(s) that implement

these policies. 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.

(c) Missing ratings. Additional

retention service credit 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

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

under paragraphs (d) or (e) of this

section, as appropriate, and as follows:

(1) An employee who has not received

any rating of record during the 4-year

period shall receive credit for

performance based on the modal rating

for the summary level pattern that

applies to the employee’s official

position of record at the time of the

reduction in force.

(2) An employee who has received at

least one but fewer than three previous

ratings of record during the 4-year

period shall receive credit for

performance on the basis of the value of

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 ratings is added

together and divided by two (and

rounded in the case of a fraction to the

next higher whole number) to determine

the amount of additional retention

service credit. If an employee has

received only one actual rating of record

during the period, its value is the

amount of additional retention service

credit provided.

(d) Single rating pattern. 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, the

additional retention service credit

provided to employees shall be

expressed in additional years of service

and shall consist of the mathematical

average (rounded in the case of a

fraction to the next higher whole

number) of the employee’s applicable

ratings of record, under paragraphs

(b)(1) and (c) of this section computed

on the following basis:

(1) Twenty additional years of service

for each rating of record with a Level 5

(Outstanding or equivalent) summary;

(2) Sixteen additional years of service

for each rating of record with a Level 4

summary; and

(3) Twelve additional years of service

for each rating of record with a Level 3

(Fully Successful or equivalent)

summary.

(e) Multiple rating patterns. 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 service credit for performance

to employees expressed in additional

years of service in accordance with the

following:

(1) Additional years of service shall

consist of the mathematical average

(rounded in the case of a fraction to the

next higher whole number) of the

additional retention service credit that

the agency established for the summary

levels of the employee’s applicable

rating(s) of record.

(2) The agency shall establish the

amount of additional retention service

credit provided for summary levels only

in full years; the agency shall not

establish additional retention service

credit for summary levels below Level 3

(Fully Successful or equivalent).

(3) When establishing additional

retention service credit for the summary

levels at Level 3 (Fully Successful or

equivalent) and above, the agency shall

establish at least 12 years, and no more

than 20 years, additional retention

service credit for a summary level.

(4) The agency may establish the same

number of years additional retention

service credit for more than one

summary level.

(5) The agency shall establish the

same number of years additional

retention service credit for all ratings of

record with the same summary level in

the same pattern of summary levels as

set forth in § 430.208(d) of this chapter.
62502 Federal Register / Vol. 62, No. 226 / Monday, November 24, 1997 / Rules and Regulations

(6) The agency may establish a

different number of years additional

retention service credit for the same

summary level in different patterns.

(7) In implementing paragraph (e) of

this section, the agency shall specify the

number(s) of years additional retention

service credit that it will establish for

summary levels. This information shall

be made readily available for review.

(8) The agency may apply paragraph

(e) of this section only to ratings of

record put on record on or after October

1, 1997. The agency shall establish the

additional retention service credit for

ratings of record put on record prior to

that date in accordance with paragraph

(d) of this section.

13. In § 351.602, paragraph (c) is

revised to read as follows:

§ 351.602 Prohibitions.

* * * * *

(c) A written decision under part 432

or 752 of this chapter of removal or

demotion from the competitive level.

14. In § 351.701, paragraph (f) is

added to read as follows:

§ 351.701 Assignment involving

displacement.

* * * * *

(f)(1) In determining applicable grades

(or grade intervals) under

§§ 351.701(b)(2) and 351.701(c)(2), the

agency uses the grade progression of the

released employee’s position of record

to determine the grade (or interval)

limits of the employee’s assignment

rights.

(2) For positions covered by the

General Schedule, the agency must

determine whether a one-grade, twograde, or mixed grade interval

progression is applicable to the position

of the released employee.

(3) For positions not covered by the

General Schedule, the agency must

determine the normal line of

progression for each occupational series

and grade level to determine the grade

(or interval) limits of the released

employee’s assignment rights. If the

agency determines that there is no

normal line of progression for an

occupational series and grade level, the

agency provides the released employee

with assignment rights to positions

within three actual grades lower on a

one-grade basis. The normal line of

progression may include positions in

different pay systems.

(4) For positions where no grade

structure exists, the agency determines

a line of progression for each occupation

and pay rate, and provides assignment

rights to positions within three grades

(or intervals) lower on that basis.

(5) If the released employee holds a

position that is less than three grades

above the lowest grade in the applicable

classification system (e.g., the employee

holds a GS–2 position), the agency

provides the released employee with

assignment rights up to three actual

grades lower on a one-grade basis in

other pay systems.

15. In § 351.705, paragraph (a)(3) is

revised to read as follows:

§ 351.705 Administrative assignment.

(a) * * *

(3) Provide competing employees in

the excepted service with assignment

rights to other positions under the same

appointing authority on the same basis

as assignment rights provided to

competitive service employees under

§ 351.701 and in paragraphs (a) (1) and

(2) of this section.

* * * * *

16. In § 351.802, paragraph (a)(2) is

revised to read as follows:

§ 351.802 Content of notice.

(a) * * *

(2) The employee’s competitive area,

competitive level, subgroup, service

date, and three most recent ratings of

record received during the last 4 years.

* * * * *

17. In § 351.803, paragraph (a) is

revised to read as follows:

§ 351.803 Notice of eligibility for

reemployment and other placement

assistance.

(a) An employee who receives a

specific notice of separation under this

part must be given information

concerning the right to reemployment

consideration and career transition

assistance under subparts B

(Reemployment Priority List), F and G

(Career Transition Assistance Programs)

of part 330 of this chapter. The

employee must also be given a release

to authorize, at his or her option, the

release of his or her resume and other

relevant employment information for

employment referral to State dislocated

worker unit(s) and potential public or

private sector employers. The employee

must also be given information

concerning how to apply both for

unemployment insurance through the

appropriate State program and benefits

available under the State dislocated

worker unit(s), as designated or created

under title III of the Job Training

Partnership Act, and an estimate of

severance pay (if eligible).

Note to § 351.803(a): Compliance dates:

Subject to the requirements of 5 U.S.C.

7116(a)(7), agencies may implement revised

§ 351.803(a) at any time between December

24, 1997 and October 1, 1998. For reduction

in force actions effective between December

24, 1997 and September 30, 1998, agencies

may use either § 351.803(a) effective

December 24, 1997, or the prior § 351.803(a)

in 5 CFR part 351 (January 1, 1997 edition).

* * * * *

18. Section 351.804 is revised to read

as follows:

§ 351.804 Expiration of notice.

(a) A notice expires when followed by

the action specified, or by an action less

severe than specified, in the notice or in

an amendment made to the notice

before the agency takes the action.

(b) An agency may not take the action

before the effective date in the notice;

instead, the agency may cancel the

reduction in force notice and issue a

new notice subject to this subpart.

19. Section 351.805 is revised to read

as follows:

§ 351.805 New notice required.

(a) An employee is entitled to a

written notice of, as appropriate, at least

60 or 120 full days if the agency decides

to take an action more severe than first

specified.

(b) An agency must give an employee

an amended written notice if the

reduction in force is changed to a later

date. A reduction in force action taken

after the date specified in the notice

given to the employee is not invalid for

that reason, except when it is

challenged by a higher-standing

employee in the competitive level who

is reached out of order for a reduction

in force action as a result of the change

in dates.

(c) An agency must give an employee

an amended written notice and allow

the employee to decide whether to

accept a better offer of assignment under

subpart G of this part that becomes

available before or on the effective date

of the reduction in force. The agency

must give the employee the amended

notice regardless of whether the

employee has accepted or rejected a

previous offer of assignment, provided

that the employee has not voluntarily

separated from his or her official

position.

PART 430—PERFORMANCE

MANAGEMENT

20. The authority citation for part 430

continues to read as follows:

Authority: 5 U.S.C. chapter 43.

21. In § 430.201, paragraph (c) is

added to read as follows:

§ 430.201 General.

* * * * *

(c) Equivalent ratings of record. (1) If

an agency has administratively adopted

and applied the procedures of this
Federal Register / Vol. 62, No. 226 / Monday, November 24, 1997 / Rules and Regulations 62503

subpart to evaluate the performance of

its employees, the ratings of record

resulting from that evaluation are

considered ratings of record for

reduction in force purposes.

(2) Other performance evaluations

given while an employee is not covered

by the provisions of this subpart are

considered ratings of record for

reduction in force purposes when the

performance evaluation—

(i) Was issued as an officially

designated evaluation under the

employing agency’s performance

evaluation system,

(ii) Was derived from the appraisal of

performance against expectations that

are established and communicated in

advance and are work related, and

(iii) Identified whether the employee

performed acceptably.

(3) When the performance evaluation

does not include a summary level

designator and pattern comparable to

those established at § 430.208(d), the

agency may identify a level and pattern

based on information related to the

appraisal process.

22. In § 430.203, the definitions of

Critical element, Performance rating,

and Rating of record are revised to read

as follows:

§ 430.203 Definitions.

* * * * *

Critical element means a work

assignment or responsibility of such

importance that unacceptable

performance on the element would

result in a determination that an

employee’s overall performance is

unacceptable. Such elements shall be

used to measure performance only at the

individual level.

* * * * *

Performance rating means the written,

or otherwise recorded, appraisal of

performance compared to the

performance standard(s) for each critical

and non-critical element on which there

has been an opportunity to perform for

the minimum period. A performance

rating may include the assignment of a

summary level within a pattern (as

specified in § 430.208(d)).

* * * * *

Rating of record means the

performance rating prepared at the end

of an appraisal period for performance

of agency-assigned duties over the entire

period and the assignment of a summary

level within a pattern (as specified in

§ 430.208(d)), or (2) in accordance with

§ 531.404(a)(1) of this chapter. These

constitute official ratings of record

referenced in this chapter.

23. In § 430.206, paragraphs (a)(2) and

(b)(4) are revised, paragraphs (b)(6) and

(b)(7) are redesignated as paragraphs

(b)(7) and (b)(8) respectively, and a new

paragraph (b)(6) is added to read as

follows:

§ 430.206 Planning performance.

(a) * * *

(2) Each program shall specify a single

length of time as its appraisal period.

The appraisal period generally shall be

12 months so that employees are

provided a rating of record on an annual

basis. A program’s appraisal period may

be longer when work assignments and

responsibilities so warrant or

performance management objectives can

be achieved more effectively.

(b) * * *

(4) Each performance plan shall

include all elements which are used in

deriving and assigning a summary level,

including at least one critical element

and any non-critical element(s).

* * * * *

(6) A performance plan established

under an appraisal program that uses

only two summary levels (pattern A as

specified in § 430.208(d)(1)) shall not

include non-critical elements.

* * * * *

24. In § 430.208, the introductory text

to paragraph (d)(2) is revised, paragraph

(d)(4) is revised, and a new paragraph

(d)(5) is added to read as follows:

§ 430.208 Rating performance.

* * * * *

(d) * * *

(2) Within any of the patterns shown

in paragraph (d)(1) of this section,

summary levels shall comply with the

following requirements:

* * * * *

(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, including, but not limited

to, assigning additional retention service

credit under § 351.504 of this chapter.

(5) Under the provisions of

§ 351.504(e) of this chapter, the number

of years of additional retention service

credit established for a summary level of

a rating of record shall be applied in a

uniform and consistent manner within a

competitive area in any given reduction

in force, but the number of years may

vary:

(i) In different reductions in force;

(ii) In different competitive areas; and

(iii) In different summary level

patterns within the same competitive

area.

* * * * *

PART 531—PAY UNDER THE

GENERAL SCHEDULE

25. The authority citation for part 531

continues to read as follows:

Authority: 5 U.S.C. 5115, 5307, and 5338;

sec. 4 of Pub. L. 103–89, 107 Stat. 981; and

E.O. 12748, 56 FR 4521, 3 CFR, 1991 Comp.,

p. 316;

Subpart B also issued under 5 U.S.C.

5303(g), 5333, 5334(a), and 7701(b)(2);

Subpart C also issued under 5 U.S.C. 5304,

5305, and 5553; sections 302 and 404 of

FEPCA, Pub. L. 101–509, 104 Stat. 1462 and

1466; and section 3(7) of Pub. L. 102–378,

106 Stat. 1356;

Subpart D also issued under 5 U.S.C.

5335(g) and 7701(b)(2);

Subpart E also issued under 5 U.S.C. 5336;

Subpart F also issued under 5 U.S.C. 5304,

5305(g)(1), and 5553; and E.O. 12883, 58 FR

63281, 3 CFR, 1993 Comp., p. 682;

Subpart G also issued under 5 U.S.C. 5304,

5305, and 5553; section 302 of the Federal

Employees Pay Comparability Act of 1990

(FEPCA), Pub. L. 101–509, 104 Stat. 1462;

and E.O. 12786, 56 FR 67453, 3 CFR, 1991

Comp., p. 376.

26. In § 531.409, paragraphs (c)(1),

(c)(2)(i), and (c)(2)(ii) are revised to read

as follows:

§ 531.409 Acceptable level of competence

determinations.

* * * * *

(c) Delay in determination. (1) An

acceptable level of competence

determination shall be delayed when,

and only when, either of the following

applies:

(i) An employee has not had the

minimum period of time established at

§ 430.207(a) of this chapter to

demonstrate acceptable performance

because he or she has not been informed

of the specific requirements for

performance at an acceptable level of

competence in his or her current

position, and the employee has not been

given a performance rating in any

position within the minimum period of

time (as established at § 430.207(a) of

this chapter) before the end of the

waiting period; or

(ii) An employee is reduced in grade

because of unacceptable performance to

a position in which he or she is eligible

for a within-grade increase or will

become eligible within the minimum

period as established at § 430.207(a) of

this chapter.

(2) * * *

(i) The employee shall be informed

that his or her determination is

postponed and the appraisal period

extended and shall be told of the

specific requirements for performance at

an acceptable level of competence.

(ii) An acceptable level of competence

determination shall then be made based

on the employee’s rating of record
62504 Federal Register / Vol. 62, No. 226 / Monday, November 24, 1997 / Rules and Regulations

completed at the end of the extended

appraisal period.

* * * * *

[FR Doc. 97–30428 Filed 11–21–97; 8:45 am]

BILLING CODE 6325–01–U

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection

Service

7 CFR Part 301

[Docket No. 96–016–26]

RIN 0579–AA83

Karnal Bunt; Additions to Regulated

Areas

AGENCY: Animal and Plant Health

Inspection Service, USDA.

ACTION: Interim rule and request for

comments.

SUMMARY: We are amending the Karnal

bunt regulations by adding portions of

McCulloch, Mills, and San Saba

Counties, TX, to the list of regulated

areas and by expanding the boundaries

of the regulated areas in La Paz,

Maricopa, and Pinal Counties, AZ, due

to the detection of Karnal bunt in those

new areas. This action is necessary on

an emergency basis to prevent the

spread of Karnal bunt into noninfested

areas of the United States.

DATES: Interim rule effective November

18, 1997. Consideration will be given

only to comments received on or before

December 24, 1997.

ADDRESSES: Please send an original and

three copies of your comments to

Docket No. 96–016–26, Regulatory

Analysis and Development, PPD,

APHIS, suite 3C03, 4700 River Road

Unit 118, Riverdale, MD 20737–1238.

Please state that your comments refer to

Docket No. 96–016–26. Comments

received may be inspected at USDA,

room 1141, South Building, 14th Street

and Independence Avenue SW.,

Washington, DC, between 8 a.m. and

4:30 p.m., Monday through Friday,

except holidays. Persons wishing to

inspect comments are requested to call

ahead on (202) 690–2817 to facilitate

entry into the comment reading room.

FOR FURTHER INFORMATION CONTACT: Mr.

Mike Stefan, Operations Officer,

Domestic and Emergency Operations,

PPQ, APHIS, 4700 River Road Unit 134,

Riverdale, MD 20737–1236, (301) 734–

8247.

SUPPLEMENTARY INFORMATION: Karnal

bunt is a fungal disease of wheat

(Triticum aestivum), durum wheat

(Triticum durum), and triticale

(Triticum aestivum X Secale cereale), a

hybrid of wheat and rye. Karnal bunt is

caused by the smut fungus Tilletia

indica (Mitra) Mundkur and is spread

by spores, primarily through the

movement of infected seed. In the

absence of measures taken by the U.S.

Department of Agriculture (USDA) to

prevent its spread, the establishment of

Karnal bunt in the United States could

have significant consequences with

regard to the export of wheat to

international markets. The regulations

regarding Karnal bunt are set forth in 7

CFR 301.89–1 through 301.89–14.

The regulations in § 301.89–3(a)

provide that the Administrator of the

Animal and Plant Health Inspection

Service will regulate each State, or each

portion of a State, in which Karnal bunt,

or any stage of development of T.

indica, is present or in which

circumstances exist that make it

reasonable to believe that Karnal bunt is

present. We currently require that a

bunted wheat kernel be found in or

associated with a field before an area

will be designated a regulated area. A

field’s association with a bunted wheat

kernel will be established when it has

been determined that: (1) A bunted

wheat kernel was found in the field

during surveys; (2) seed from a lot

contaminated with a bunted wheat

kernel was planted in the field; or (3)

the field was found during surveys to

contain spores consistent with Karnal

bunt and has been determined to be

associated with grain at a handling

facility containing a bunted wheat

kernel.

The regulations in § 301.89–3(b)

provide that less than an entire State

will be designated as a regulated area

only if the Administrator determines

that the State has adopted and is

enforcing restrictions on the intrastate

movement of regulated articles that are

equivalent to those imposed by the

regulations on the interstate movement

of regulated articles, and the designation

of less than the entire State as a

quarantined area will prevent the spread

of Karnal bunt. The Administrator may

also designate less than an entire State

as a regulated area by exercising his or

her extraordinary emergency authority

under 7 U.S.C. 150dd when it is

determined that a State is not taking

adequate measures to prevent the spread

of Karnal bunt.

Under § 301.89–3(e) of the

regulations, a regulated area is further

subdivided into areas classified as either

restricted areas or surveillance areas.

Restricted areas are further divided into

restricted areas for seed and restricted

areas for regulated articles other than

seed. Restricted areas for seed are

generally larger than restricted areas for

regulated articles other than seed and

surveillance areas, and will encompass

both.

A restricted area for seed is a distinct

definable area that includes at least one

field that has been: (1) Found during

survey to contain a bunted wheat

kernel; (2) planted with seed from a lot

found to contain a bunted wheat kernel;

or (3) found during survey to contain

spores consistent with Karnal bunt and

has been determined to be associated

with grain at a handling facility

containing a bunted wheat kernel.

Individual fields associated with a

bunted wheat kernel, such as bunted

kernels from a handling facility, are

designated as restricted areas for

regulated articles other than seed. The

identity of those fields is determined

using the same criteria discussed above

with regard to restricted areas for seed,

but it is the field itself, without any

adjacent areas, that is designated as the

restricted area for regulated articles

other than seed.

A surveillance area is an area that

includes at least one field that was

either found during survey to contain a

bunted wheat kernel, or that was found

to contain spores consistent with Karnal

bunt and has been determined to be

associated with grain at a handling

facility containing a bunted wheat

kernel.

All Karnal bunt host crops are

prohibited from being planted in an area

restricted for the movement of regulated

articles other than seed. Under the

regulations, a surveillance area

surrounds an area restricted for the

movement of regulated articles other

than seed. While Karnal bunt host crops

may be planted in the surveillance area,

they may not be used for seed.

Surrounding and encompassing the

surveillance area is an area where the

movement of seed is restricted unless

certain conditions are met.

Recently, during surveys conducted

as part of the National Karnal Bunt

Survey, bunted wheat kernels were

detected in areas of Texas that lie

outside the regulated area in that State,

and in fields in Arizona that are within

the State’s regulated area but outside of

the established restricted areas for

regulated articles other than seed and

surveillance areas.

Therefore, in accordance with the

criteria described above, we are

amending the regulations to reflect

those recent detections of bunted wheat

kernels. Specifically, in Texas we are

designating 17 fields in San Saba

County as restricted areas for regulated

articles other than seed; designating

portions of McCulloch and Mills