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

32593

Vol. 63, No. 114

Monday, June 15, 1998

OFFICE OF PERSONNEL

MANAGEMENT

5 CFR Part 351

RIN 3206–AG77

Reduction in Force Retreat Right

AGENCY: Office of Personnel

Management.

ACTION: Final rulemaking.

SUMMARY: The Office of Personnel

Management (OPM) is issuing final

regulations that clarify employees’

‘‘Retreat’’ rights. These final regulations

also clarify the content of specific

reduction in force notices.

DATES: These regulations are effective

July 15, 1998.

FOR FURTHER INFORMATION CONTACT:

Thomas A. Glennon or Jacqui R.

Yeatman, (202) 606–0960, FAX (202)

606–2329.

SUPPLEMENTARY INFORMATION:

Background

On August 25, 1995, OPM published

interim retention regulations (60 FR

44254) that clarified the procedures

agencies use to determine employees’

rights to ‘‘retreat’’ to positions during a

reduction in force. These regulations

also clarified what information agencies

must provide employees who receive a

specific notice of reduction in force.

Interested parties could provide OPM

with written comments during the

period covering 60 days from the date

of publication.

Comments

OPM received seven comments on the

retreat right provisions found in these

interim regulations: four from agencies,

and three from individual employees.

OPM did not receive any comments on

the revised notice provisions of the

regulations.

One agency supported the regulations

as written. Two agencies suggested that

OPM further clarify how agencies

determine employees’ retreat rights in

specific situations. The fourth agency

suggested that OPM limit employees’

retreat rights only to positions that the

present agency can readily document

(i.e., positions in the employee’s present

agency).

Of the three comments from

individual employees, two employees

suggested that OPM provide additional

material covering how agencies

determine retreat rights, while the third

employee believed that the interim

regulations expanded rather than

clarified employees’ retreat rights.

The agency comment suggesting that

the retreat right be redefined to provide

a more restrictive standard was not

adopted.

The comments from two of the

agencies and all three of the employees

asking for clarification of how agencies

determine retreat rights are reflected in

the following material that explains the

scope and purpose of these final

regulations on retreat.

Final Regulations–Retreat Rights

OPM is now publishing final

retention regulations that further clarify

employees’ retreat rights. Final

§ 351.701(c)(3) provides that an

employee has the right to retreat to the

same position, or an essentially

identical position, formerly held by the

released employee on a permanent basis

in a Federal agency. Final

§ 351.701(c)(3) further clarifies that the

agency determines an employee’s retreat

right based only on former positions in

any Federal agency that the released

employee held as a competing

employee, or equivalent (i.e., when held

by the released employee, the position

would have been placed in tenure group

I, II, or III, or equivalent).

In defining what constitutes ‘‘an

essentially identical position’’ for this

purpose, final § 351.701(c)(3) still

provides that in determining whether a

position is essentially identical, the

agency uses the competitive level

criteria found in § 351.403, but without

regard to the respective grade,

classification series, type of work

schedule, or type of service, of the two

positions. Consistent with OPM’s

interpretation of its own regulations,

this reflects the longstanding history of

retreat as a narrow right of same

subgroup bumping limited to actual

positions formerly held by a released

employee, rather than a broader form of

same subgroup bumping based upon a

return to the same general occupation

based upon personal qualifications for

that position.

Effective August 22, 1947, the retreat

right was originally incorporated in 5

CFR part 20.9 of the former U.S. Civil

Service Commission’s retention

regulations. In 1954 the Commission

began to use the term ‘‘retreat’’ in

referring to this form of same subgroup

bumping that was limited to positions

from which, or in the same line of work

through which, a released employee had

previously been promoted.

The retreat right was based upon the

assumption that a released employee

who was so successful in performing a

prior position that the employee was

promoted to another position should be

allowed to return to the former position

if (1) the former position was

substantially the same, and (2) because

of higher same subgroup retention

standing than the present incumbent of

the position, the released employee

would not be released from the

retention register that includes the

former position.

In final regulations published by OPM

on January 3, 1986 (51 FR 319), the

retreat right was expanded to include

positions held on a permanent basis in

the Federal service by the released

employee without regard to whether the

employee was promoted from that

position (i.e., the retreat right now

includes positions vacated because of

reassignment and transfer). Consistent

with this expansion of retreat rights, the

January 3, 1986, revision also excludes

positions that were simply in the same

line of work through which a released

employee had previously been

promoted, but which the employee had

not actually held.

These final retention regulations

intend that agencies use a narrow

modified competitive level standard set

forth in § 351.701(c)(3) to determine an

employee’s retreat rights to an

essentially identical position. This is

consistent with OPM’s as well as the

former Commission’s, longstanding

definition of the competitive level as the

basic standard for retreat rights. Also,

this revision addresses the issue of what

constitutes an ‘‘essentially identical’’

position in the wake of the decisions of

the Merit Systems Protection Board in

Parkhurst v. Department of
32594 Federal Register / Vol. 63, No. 114 / Monday, June 15, 1998 /Rules and Regulations

Transportation, 70 M.S.P.R. 309 (1995),

and Pigford v. Department of the

Interior, 75 M.S.P.R. 251 (1996).

Because retreat is a narrow right,

§ 351.701(c)(3) does not intend to

provide a more disruptive, broader

range of same subgroup bumping that,

based upon personal qualifications,

would provide a released employee

with the right to displace a lowerstanding employee solely because the

released employee formerly held a

position in the same general line of

work.

At its discretion, an agency may

provide a broader assignment

opportunity to released employees that

is primarily based on the personal

qualifications set forth in section

351.702(a). However, this alternative is

not applicable to a determination of an

employee’s retreat rights under

authority of § 351.701(c).

As requested in several comments on

the interim regulations, the following

four examples of retreat rights are

reprinted from the Supplementary

Information material in the interim

retention regulations that OPM

published on August 25, 1995 (60 FR

44254).

Examples of Retreat Rights

Example number 1: A GS–7 employee

formerly held a GS–322–5 position.

Because of a new classification

standard, the GS–322–5 is reclassified to

a GS–326–5 with no change in duties,

responsibilities, and qualifications. This

regulation clarifies that the GS–7

employee would have a right to retreat

to the GS–326–5 position held by a

lower-standing employee if the agency

determines that the employee’s former

GS–322–5 position and the GS–326–5

position are otherwise essentially

identical using the competitive level test

found in 5 CFR 351.403.

Example number 2: A WG–4204–10

employee formerly held a WG–4204–7

position. Because of classification error,

the WG–4204–7 position is reclassified

to a WG–4204–8 with no change in

duties, responsibilities, and

qualifications. This regulation clarifies

that the WG–4204–10 employee would

have a right to retreat to the WG–4204–

8 position held by a lower-standing

employee if the agency determines that

the employee’s former WG–4204–7

position and the WG–4204–8 position

are otherwise essentially identical using

the competitive level test found in 5

CFR 351.403.

Example number 3: A full-time GS–

343–11 employee formerly held a parttime GS–343–7 position. This regulation

clarifies that the full-time GS–343–11

employee would have a right to retreat

to a full-time GS–343–7 held by a lowerstanding employee if the agency

determines that the employee’s former

part-time GS–343–7 position and the

GS–343–7 position are otherwise

essentially identical using the

competitive level test found in 5 CFR

351.403.

Example number 4: A GS–334–11

competitive service employee formerly

held a GS–334–7 position under an

excepted service Veterans Readjustment

Appointment (VRA). This regulation

clarifies that the GS–334–11 employee

would have a right to retreat to a GS–

334–7 position held by a lower-standing

competitive service employee if the

agency determines that the employee’s

former GS–334–7 VRA position and the

GS–334–7 position are otherwise

essentially identical using the

competitive level test found in 5 CFR

351.403.

Final Regulations—Reduction in Force

Notices

OPM is publishing final regulations

on reduction in force notices with

revision only to an applicable section of

statute cited in § 351.801(a)(2). Section

351.801(a)(2) provides that, from

January 20, 1993, through January 31,

2000, each competing employee of the

Department of Defense is entitled, under

implementing regulations issued by that

agency, to a specific written notice at

least 120 full days before the effective

date of release when a significant

number of employees will be separated

from a competitive area by reduction in

force. This provision is consistent with

section 341(a) of Pub. L. 103–337.

(§ 351.801(a)(2) had contained a

reference to section 911(a) of Pub. L.

103–337.)

Section 351.802(a)(1) provides that a

specific reduction in force notice must

cover the action to be taken, the

effective date of the action, and the

reasons for the action. This provision is

consistent with statutory requirements

set forth in 5 U.S.C. 3502(d)(2)(A).

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,

Section 351.801 also issued under E.O.

12828, 58 FR 2965.

2. In § 351.701, paragraph (c)(3) is

revised to read as follows:

§ 351.701 Assignment involving

displacement.

* * * * *

(c) * * *

(3) Is the same position, or an

essentially identical position, formerly

held by the released employee 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.

* * * * *

3. In § 351.801, paragraph (a)(2) is

revised to read as follows:

§ 351.801 Notice period.

(a) * * *

(2) Under authority of section 4433 of

Pub. L. 102–484, as amended by section

341(a) of Pub. L. 103–337, each

competing employee of the Department

of Defense is entitled, under

implementing regulations issued by that

agency, to a specific written notice at

least 120 full days before the effective

date of release when a significant

number of employees will be separated

by reduction in force. The 120 days

notice requirement is applicable during

the period from January 20, 1993,

through January 31, 2000. The basic

requirement for 60 full days specific

written notice set forth in paragraph (a)

of this section is still applicable when

less than a significant number of

employees will be separated by

reduction in force.

* * * * *

4. In § 351.802, paragraph (a)(1) is

revised to read as follows:
Federal Register / Vol. 63, No. 114 / Monday, June 15, 1998 /Rules and Regulations 32595

§ 351.802 Content of notice.

(a)(1) The action to be taken, the

reasons for the action, and its effective

date;

* * * * *

[FR Doc. 98–15860 Filed 6–12–98; 8:45 am]

BILLING CODE 6325–01–P

OFFICE OF PERSONNEL

MANAGEMENT

5 CFR Parts 831 and 842

RIN 3206–AI25

Voluntary Early Retirement Authority

AGENCY: Office of Personnel

Management.

ACTION: Interim rule.

SUMMARY: The Office of Personnel

Management is publishing interim

regulations covering Federal employee

voluntary early retirements to

implement new procedures affecting the

application of voluntary early

retirements. These temporary provisions

affect agency requests, OPM approval,

and agency offers of voluntary early

retirement as well as several eligibility

requirements for early retirement during

a major reorganization, major reduction

in force, or major transfer of function.

The basic age and service requirements

for voluntary early retirement remain

unchanged.

DATES: Sections 831.108 and 842.205 are

suspended from June 15, 1998 until

October 1, 1999. Sections 831.114 and

842.213 are added effective from June

15, 1998 through September 30, 1999.

Comments must be received by August

14, 1998.

ADDRESSES: Send written comments to

Mary Lou Lindholm; Associate Director

for Employment; Office of Personnel

Management; Room 6500; 1900 E Street,

NW; Washington, DC 20415.

FOR FURTHER INFORMATION CONTACT:

Edward P. McHugh or Gregory P. Keller,

202–606–0960, FAX 202–606–2329.

SUPPLEMENTARY INFORMATION: 5 U.S.C.

8336(d)(2) and 8414(b)(1)(B) provide

that OPM may approve voluntary early

retirement authority for agencies

undergoing a major reorganization,

major reduction in force, or major

transfer of function. 5 U.S.C. 8336(d)(2)

authorizes the voluntary early

retirement of employees under the Civil

Service Retirement System (CSRS),

while 5 U.S.C. 8414(b)(1)(B) authorizes

the voluntary early retirement of

employees under the Federal Employees

Retirement System (FERS).

Section 7001 of Public Law 105–174,

the Supplemental Appropriations and

Rescissions Act, FY 1998, enacted May

1, 1998, provided authority for OPM

and agencies to apply special provisions

affecting the manner in which voluntary

early retirements may be administered

and approved for the period from May

1, 1998, through September 30, 1999.

Under section 7001, an agency may

request a determination from the Office

of Personnel Management that the

agency or agency component(s) is

undergoing a major reorganization,

major reduction in force, or major

transfer of function and that such action

will result in the separation or

downgrading of a significant percentage

of the employees in the agency or

component(s).

The law allows OPM to prescribe

regulations which permit the agency,

after OPM approval, to determine the

scope of voluntary early retirement

offers on the basis of one or more

organizational units; one or more

occupational series or levels; one or

more geographic locations; other similar

nonpersonal factors; or any appropriate

combination of such factors.

Additionally, the law imposes several

restrictions on eligibility for voluntary

early retirement. Employees who have

not been employed continuously by the

agency since at least 31 days prior to the

date of the agency’s requests to OPM for

early retirement; employees serving

under time-limited appointments; and

employees who have been notified that

such employee is to be involuntarily

separated for misconduct or

unacceptable performance are ineligible

for voluntary early retirements during

the period this law is effective.

These interim regulations describe

agencies’ requests to OPM for approval

of a voluntary early retirement

authority; the manner in which agencies

may offer voluntary early retirements;

the responsibilities of agencies in

managing approved voluntary early

retirement authorities; eligibility of

employees for voluntary early

retirement; and agencies’ required

reports to OPM on use of the authorities.

Public Law 105–174 provided for the

application of voluntary early

retirements under these provisions

through September 30, 1999. Therefore,

5 CFR 831.108 and 842.205 are

suspended until October 1, 1999. In lieu

of those sections, §§ 831.114 and

842.213 are added. 5 CFR 831.114

covers voluntary early retirement for

CSRS employees, while the new 5 CFR

842.213 covers voluntary early

retirement for FERS employees.

Notwithstanding any future changes in

the voluntary early retirement statutes,

§§ 831.114 and 842.213 will expire

September 30, 1999, at which time

§§ 831.108 and 842.205 will be restored.

The special provisions in Public Law

105–174 do not affect the existing

statutory requirements in 5 U.S.C.

8336(d) or 8414(b)(1) that, in order to be

eligible for voluntary early retirement,

an individual must have completed 25

years of service or have reached age 50

and completed 20 years of service.

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. Also,

pursuant to 5 U.S.C. 553(d)(3), I find

that good cause exists to make this

amendment effective in less than 30

days. The general notice of proposed

rulemaking and delay in the effective

date are being waived because these

regulations allow OPM to immediately

implement statutory language in Public

Law 105–174 governing voluntary early

retirements which was effective May 1,

1998, and to give full effect to benefits

extended by that statute.

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 831

Administrative practice and

procedure, Alimony, Claims, Disability

benefits, Firefighters, Government

employees, Income taxes,

Intergovernmental relations, Law

enforcement officers, Pensions,

Reporting and recordkeeping

requirements, Retirement.

5 CFR Part 842

Air traffic controllers, Alimony,

Firefighters, Government employees,

Law enforcement officers, Pensions,

Retirement.

U.S. Office of Personnel Management.

Janice R. Lachance,

Director.

Accordingly, OPM is amending parts

831 and 842 of title 5, Code of Federal

Regulations, as follows: