This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

26531

Vol. 63, No. 92

Wednesday, May 13, 1998

OFFICE OF PERSONNEL

MANAGEMENT

5 CFR PART 351

RIN 3206–AH95

Reduction in Force Offers of Vacant

Positions

AGENCY: Office of Personnel

Management.

ACTION: Proposed rulemaking.

SUMMARY: The Office of Personnel

Management is proposing retention

regulations that clarify existing policy

on reduction in force offers of vacant

positions.

DATES: Written comments will be

considered if received no later than July

13, 1998.

ADDRESSES: Send or deliver written

comments to Mary Lou Lindholm,

Associate Director for Employment

Service, 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:

Assignment Rights-General

Reduction in force assignment rights

are covered in part 351, subpart G, of

title 5, Code of Federal Regulations.

Section 351.701(a) provides that a

competing employee in retention tenure

Groups I and II with current

performance ratings of at least

‘‘Minimally Successful’’ who has been

released from a competitive level is

entitled to an offer of assignment under

the retention regulations if the employee

has ‘‘Bumping’’ or ‘‘Retreating’’ rights to

an available position in the same

competitive area.

Section 351.701(a) provides that the

assignment right is limited to positions

lasting at least 3 months with the same

work schedule, and in the same

competitive area, as the position of the

released employee. The assignment

right is to another position which

requires no reduction, or the least

possible, reduction, in representative

rate.

Section 351.701(b)(2) covering

bumping rights, and § 351.701(c)(2)

covering retreat rights, provide that the

available position must be within three

grades or grade-intervals (or equivalent)

of the employee’s present position.

However, under § 351.702(c)(2), an

employee who is eligible for veterans’

preference under the retention

regulations, and who has a serviceconnected disability of 30 percent or

more, has a retreat right to positions up

to five grades or grade-intervals (or

equivalent) of the employee’s present

position.

Assignment Rights-Offer of Vacant

Positions

Section 351.201(b) provides that an

agency is not required to offer a vacant

position during a reduction in force.

However, if the agency chooses to fill a

vacancy with an employee who has

been released under authority of 5 CFR

part 351 from a competitive level, then

the agency must make the offer

consistent with the provisions found in

subpart G of that part.

Section 351.704(a)(1) provides that an

agency may satisfy an employee’s right

to assignment under section 351.701 by

offering the employee assignment to a

vacant position under § 351.201(b) if the

offered position has a representative rate

equal to the employee’s entitlement

under § 351.701. (As another option,

§ 351.704(a)(1) also provides that an

agency may satisfy an employee’s right

to assignment under the administrative

assignment provisions of § 351.705.)

Section 351.704(a)(1) is now revised

to clarify longstanding OPM policy that

an agency may also offer an employee

assignment to a vacant position in lieu

of separation by reduction in force

under 5 CFR part 351.

Section 351.704(a)(1) is also revised to

clarify longstanding OPM policy that an

offer of assignment to a vacant position

must be consistent with § 351.201(b)

and § 351.701, including the grade

limits applicable to bump and retreat set

forth in § 351.701(b)(2) and

§ 351.701(c)(2). This revision modifies

the decision of the Merit Systems

Protection Board in Monk v. Department

of the Navy, 68 M.S.P.R. 560 (1995), in

which the Board held that the usual

grade limits applicable to bump and

retreat rights do not apply to reduction

in force offers of vacant positions.

Agencies may still make offers of vacant

positions below the applicable grade

limits under other authority (e.g., as an

offer of voluntary change to lower grade

in lieu of reduction in force).

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.

List of Subjects in 5 CFR Part 351

Administrative practice and

procedure, Government employees.

U.S. Office of Personnel Management

Janice R. Lachance,

Director.

Accordingly, OPM proposes to amend

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,

Section 351.801 also issued under E.O.

12828, 58 FR 2965.

2. In § 351.704, paragraph (a)(1) is

revised to read as follows:

§ 351.704 Rights and prohibitions.

(a)(1) An agency may satisfy an

employee’s right to assignment under

§ 351.701 by assignment to a vacant

position under § 351.201(b), or by

assignment under any applicable

administrative assignment provisions of

§ 351.705, to a position having a

representative rate equal to that the

employee would be entitled under

§ 351.701. An agency may also offer an

employee assignment under

§ 351.201(b) to a vacant position in lieu

of separation by reduction in force

under 5 CFR part 351. Any offer of

assignment under § 351.201(b) to a

vacant position must meet the

requirements set forth under § 351.701.

* * * * *

[FR Doc. 98–12623 Filed 5–12–98; 8:45 am]

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