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

62991

Vol. 65, No. 204

Friday, October 20, 2000

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.

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 gradeinterval 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 gradeintervals 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 serviceconnected 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:

§ 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:

62992 Federal Register / Vol. 65, No. 204 / Friday, October 20, 2000 / Rules and Regulations

(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 serviceconnected 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

§ 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.

* * * * *

[FR Doc. 00–26945 Filed 10–19–00; 8:45 am]

BILLING CODE 6325–01–U

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 932

[Docket No. FV00–932–3 FR]

Olives Grown in California;

Modification to Handler Membership

on the California Olive Committee

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Final rule.

SUMMARY: This rule modifies the

handler membership on the California

Olive Committee (Committee). The

Committee locally administers the

California olive marketing order (order)

which regulates the handling of olives

grown in California. The Committee is

composed of 16 industry members of

which 8 are producers and 8 are

handlers. Current handler

representation on the Committee

provides that the two handlers who

handled the largest and second largest

total volume of olives during the crop

year in which nominations were made

and in the preceding crop year shall be

represented by three members and

alternate members each, and that the

remaining handler shall be represented

by two members and alternate members.

Recently, one of the handlers indicated

that it was exiting the business, and no

longer desired to serve on the

Committee. This rule reallocates

handler membership and enables the

Committee to operate at full strength.

EFFECTIVE DATE: October 23, 2000.

FOR FURTHER INFORMATION CONTACT: Rose

Aguayo, Marketing Specialist, California

Marketing Field Office, Marketing Order

Administration Branch, Fruit and

Vegetable Programs, AMS, USDA, 2202

Monterey Street, suite 102B, Fresno,

California 93721; telephone: (559) 487–

5901, Fax: (559) 487–5906; or George

Kelhart, Technical Advisor, Marketing

Order Administration Branch, Fruit and

Vegetable Programs, AMS, USDA, room

2525–S, P.O. Box 96456, Washington,

DC 20090–6456; telephone: (202) 720–

2491; Fax: (202) 720–5698.

Small businesses may request

information on complying with this

regulation by contacting Jay Guerber,

Marketing Order Administration

Branch, Fruit and Vegetable Programs,

AMS, USDA, P.O. Box 96456, room

2525–S, Washington, DC 20090–6456;

telephone: (202) 720–2491, Fax: (202)

720–5698, or E-mail:

Jay.Guerber@usda.gov.

SUPPLEMENTARY INFORMATION: This final

rule is issued under Marketing

Agreement No. 148 and Order No. 932,

both as amended (7 CFR part 932),

regulating the handling of olives grown

in California, hereinafter referred to as

the ‘‘order.’’ The marketing agreement

and order are effective under the

Agricultural Marketing Agreement Act

of 1937, as amended (7 U.S.C. 601–674),

hereinafter referred to as the ‘‘Act.’’

The Department of Agriculture

(Department) is issuing this rule in

conformance with Executive Order

12866.

This final rule has been reviewed

under Executive Order 12988, Civil

Justice Reform. This action is not

intended to have retroactive effect. This

final rule will not preempt any State or

local laws, regulations, or policies,

unless they present an irreconcilable

conflict with this rule.

The Act provides that administrative

proceedings must be exhausted before

parties may file suit in court. Under

section 608c(15)(A) of the Act, any

handler subject to an order may file

with the Secretary a petition stating that

the order, any provision of the order, or

any obligation imposed in connection

with the order is not in accordance with

law and request a modification of the

order or to be exempted therefrom. A

handler is afforded the opportunity for

a hearing on the petition. After the

hearing the Secretary would rule on the

petition. The Act provides that the

district court of the United States in any

district in which the handler is an

inhabitant, or has his or her principal

place of business, has jurisdiction to

review the Secretary’s ruling on the

petition, provided an action is filed not

later than 20 days after the date of the

entry of the ruling.

This final rule modifies the order’s

administrative rules and regulations

regarding the structure of handler

membership on the Committee. The

change in structure was unanimously

recommended by the Committee.

Section 932.25 of the order provides

for the establishment of the Committee

to locally administer the terms and

provisions of the order. The Committee

is composed of 16 industry members,

each with an alternate. Of the 16

industry members, 8 are producers and

8 are handlers. This section also

specifies how the handler membership

on the Committee is allocated.

Authority is provided for the

Committee, with the approval of the

Secretary, to change the allocation of

both producer and handler members as

may be necessary to assure equitable

representation.

Based on this authority, § 932.159 of

the administrative rules and regulations

currently provides that the two handlers

who handled the largest and second

largest total volume of olives during the

crop year in which nominations were

made and in the preceding crop year

shall be represented by three members

and alternate members each, and the

remaining handler shall be represented

by two members and alternate members.

This reallocation was implemented in

January of 1999 (64 FR 4286) with an

interim final rule. Comments were

invited until March 29, 1999. The

interim final rule was adopted without

change in a final rule in April of 1999

(64 FR 23009).

The structure of the olive industry has

changed over the years and the number

of handlers, both cooperative and

independent (or handlers not affiliated

with a cooperative marketing

organization), has decreased. At one

time, there were a number of

cooperative marketing organizations and

independent handlers and the