[Federal Register Volume 63, Number 114 (Monday, June 15, 1998)]
[Rules and Regulations]
[Pages 32593-32595]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-15860]



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Rules and Regulations
                                                Federal Register
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Federal Register / Vol. 63, No. 114 / Monday, June 15, 1998 / Rules 
and Regulations

[[Page 32593]]


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OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 351

RIN 3206-AG77


Reduction in Force Retreat Right

AGENCY: Office of Personnel Management.

ACTION: Final rulemaking.

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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 Sec. 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 Sec. 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 Sec. 351.701(c)(3) still provides that in 
determining whether a position is essentially identical, the agency 
uses the competitive level criteria found in Sec. 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 Sec. 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

[[Page 32594]]

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, Sec. 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 lower-standing 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 Sec. 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 
part-time 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 lower-standing 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 
Sec. 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. (Sec. 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 Sec. 351.701, paragraph (c)(3) is revised to read as follows:


Sec. 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 
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.
* * * * *
    3. In Sec. 351.801, paragraph (a)(2) is revised to read as follows:


Sec. 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 Sec. 351.802, paragraph (a)(1) is revised to read as follows:

[[Page 32595]]

Sec. 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