[Federal Register Volume 65, Number 204 (Friday, October 20, 2000)]
[Rules and Regulations]
[Pages 62991-62992]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-26945]



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Rules and Regulations
                                                Federal Register
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Federal Register / Vol. 65, No. 204 / Friday, October 20, 2000 / 
Rules and Regulations

[[Page 62991]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 351

RIN 3206-AJ14


Reduction in Force Retreat Rights

AGENCY: Office of Personnel Management.

ACTION: Interim rule with request for comments.

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SUMMARY: The Office of Personnel Management is issuing an interim 
retention regulation that clarifies a released employee's potential 
right to ``Retreat'' to another position in a reduction in force. This 
regulation states that an agency determines the potential grade range 
of a released employee's retreat right solely upon the position held by 
the employee on the effective date of the reduction in force rather 
than the grade range of the position to which the employee may have a 
right to retreat.

DATES: This regulation is effective on October 20, 2000. Written 
comments will be considered if received no later than December 19, 
2000.

ADDRESSES: Send written comments to Carol J. Okin, Associate Director 
for Employment, Office of Personnel Management, Room 6F08, 1900 E 
Street, NW., Washington, DC 20415.

FOR FURTHER INFORMATION CONTACT: Thomas A. Glennon or Jacqueline R. 
Yeatman, 202-606-0960, FAX 202-606-2329.

SUPPLEMENTARY INFORMATION:

Purpose of This Interim Retreat Regulation

    This interim regulation clarifies OPM's longstanding policy that an 
agency determines the grade or grade-interval range of a released 
employee's potential retreat rights solely on the basis of the official 
position of record held by the employee on the effective date of the 
reduction in force. See 51 FR 319 (January 3, 1986). In determining an 
employee's potential retreat rights, an agency does not consider the 
grade or grade-interval range of the position to which the employee may 
have a retreat right.
    OPM is publishing this interim regulation in response to a January 
28, 2000, decision by the United States Court of Appeals for the 
Federal Circuit in Henderson v. Department of the Interior, 202 F.3d 
1356 (Fed. Cir. 2000). In Henderson, the Court interpreted our 
regulations as meaning something different from what OPM had intended. 
As a result, the Court found that an agency determines an employee's 
potential retreat right, in part, on the basis of the grade or grade-
interval range of the position to which the employee may have a right 
to retreat. This new interim regulation reinforces OPM's intent that an 
agency determines an employee's potential retreat rights only on the 
basis of the employee's current official position of record.

Employees' Retreat Rights

    Section 351.603 of OPM's retention regulations provides that a 
permanent competitive service employee who is released from a 
competitive level as the result of reduction in force competition has a 
potential ``Bump'' or ``Retreat'' right to other continuing positions 
before involuntary separation. For reference, OPM published a 
comprehensive history and explanation of the retreat right in the 
Supplementary Information section of final regulations that were 
published in the Federal Register on June 15, 1998, at 63 FR 32593.

Consideration of Grade Limits in Determining Employees' Retreat 
Rights

    OPM's reduction in force regulations generally limit the grade 
limits of an employee's potential bump and retreat rights to positions 
that are within, as appropriate, three grades or grade-intervals of the 
official position held on the effective date of the reduction in force. 
In addition, a preference eligible employee who competes under OPM's 
retention regulations in retention tenure subgroup I-AD on the basis of 
a service-connected compensable disability of 30% (or higher) has a 
potential retreat right to positions that are within, as appropriate, 
five grades or grade intervals of the official position held on the 
effective date of the reduction in force.

Waiver of Notice of Proposed Rulemaking and Delay in Effective Date

    Pursuant to 5 U.S.C. 553(b)(3)(B), I find that good cause exists 
for waiving the general notice of proposed rulemaking because it would 
be contrary to the public interest to delay access to benefits provided 
by law. Also, pursuant to 5 U.S.C. 553(d)(3), I find that good cause 
exists to waive the effective date and make this amendment effective in 
less than 30 days in order to provide eligible displaced employees with 
the full benefit of their retreat rights at the earliest practicable 
date.

Regulatory Flexibility Act

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

Executive Order 12866, Regulatory Review

    This rule has been reviewed by the Office of Management and Budget 
in accordance with Executive Order 12866.

List of Subjects in 5 CFR Part 351

    Administrative practice and procedure, Government employees.

Office of Personnel Management.
Janice R. Lachance,
Director.
    Accordingly, OPM is amending part 351 of title 5, Code of Federal 
Regulations, as follows:

PART 351--REDUCTION IN FORCE

    1. The authority citation for part 351 continues to read as 
follows:

    Authority: 5 U.S.C. 1302, 3502, 3503; sec. 351.801 also issued 
under E.O. 12828, 58 FR 2965.

    2. Section 351.701(c) is revised to read as follows:


Sec. 351.701  Assignment involving displacement.

* * * * *
    (c) Same subgroup-retreating. A released employee shall be assigned 
in accordance with paragraphs (a) and (d) of this section and retreat 
to a position that:

[[Page 62992]]

    (1) Is held by another employee with lower retention standing in 
the same tenure group and subgroup; and
    (2) Is not more than three grades (or appropriate grade intervals 
or equivalent) below the position from which the employee was released, 
except that for a preference eligible employee with a compensable 
service-connected disability of 30 percent or more the limit is five 
grades (or appropriate grade intervals or equivalent). (The agency uses 
the grade progression of only the released employee's position of 
record to determine the applicable grades (or appropriate grade 
intervals or equivalent) of the employee's retreat right. The agency 
does not consider the grade progression of the position to which the 
employee has a retreat right.); and
    (3) Is the same position, or an essentially identical position, 
formerly held by the released employee on a permanent basis as a 
competing employee in a Federal agency (i.e., when held by the released 
employee in an executive, legislative, or judicial branch agency, the 
position would have been placed in tenure groups I, II, or III, or 
equivalent). In determining whether a position is essentially 
identical, the determination is based on the competitive level criteria 
found in Sec. 351.403, but not necessarily in regard to the respective 
grade, classification series, type of work schedule, or type of 
service, of the two positions.
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[FR Doc. 00-26945 Filed 10-19-00; 8:45 am]
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