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

2677

Vol. 60, No. 7

Wednesday, January 11, 1995

OFFICE OF PERSONNEL

MANAGEMENT

5 CFR Part 351

RIN 3206–AF00; 3206–AF42; 3206–AF63

Reduction in Force Notice-Certification

of Expected Separation; Exception to

60 Days Specific Notice; Permissive

Temporary Exception

AGENCY: Office of Personnel

Management.

ACTION: Final rulemaking.

SUMMARY: The Office of Personnel

Management (OPM) is issuing final

reduction in force (RIF) regulations that

authorize: an agency to issue a

Certification of Expected Separation to

an employee who the agency expects

will be separated within 6 months by

RIF; the Director of OPM to approve a

(RIF) notice period of less than 60 days

specific written notice in unforeseeable

circumstances; and, an agency to make

a permissive temporary exception for

more than 90 days past the RIF effective

date to satisfy a Government obligation

to an employee.

DATES: Final rules effective February 10,

1995.

FOR FURTHER INFORMATION CONTACT:

Thomas A. Glennon or Edward P.

McHugh, Workforce Restructuring

Office, (202) 606–0960; FAX (202) 606–

0390.

SUPPLEMENTARY INFORMATION:

Certification of Expected Separation

On May 26, 1992, OPM published

interim regulations in the Federal

Register at 57 FR 21890 with a 60 day

comment period. The regulations were

inadvertently deleted by regulations

published June 8, 1993 (58 FR 32046).

To correct this error, the regulations

were republished for information in the

Federal Register on June 27, 1994, at 59

FR 32871.

These interim regulations allowed

agencies to issue employees a

Certification of Expected Separation

(CES) if the agency found that the

employee would likely be separated

within 6 months by RIF. The CES notice

allows employees to register early for

outplacement and retraining services

provided by the agency, OPM, and

programs under the Job Training

Partnership Act (JTPA) administered by

the Department of Labor.

OPM received fourteen written

comments on these interim regulations:

Nine from agencies and five from State

or local governmental units or their

representatives. All of the comments

favored the CES option. After

consideration of the comments, the

interim regulations are published

without revision.

Each comment addressed employees’

eligibility for the JTPA after receiving a

CES.

Eight recommended a minimum CES

notice period longer than the 6 month

limit provided in 5 CFR 351.807(a) of

the interim regulations. After reviewing

these comments, we left the 6 month

limit unchanged because the maximum

time period was consistent with the

Department of Labor’s policy.

Five requested broader eligibility

criteria for registration in the JTPA.

Again, we left the eligibility

requirements unchanged because we

believe 5 CFR 351.807(a) is consistent

with the Department of Labor’s policy.

Other comments asked that OPM

issue technical guidance to clarify

receipt of a CES on employees’

eligibility for OPM’s interagency

placement programs and the

reemployment priority list. We will

provide this guidance to agencies

through other sources.

The Discretionary Temporary

Exception to the Order of Release and

the Liquidation Provision

On May 27, 1994, OPM published

proposed regulations in the Federal

Register at 59 FR 27509 with a 60 day

comment period. These regulations

proposed elimination of the 90 day limit

on the use of a permissive temporary

exception to satisfy a Government

obligation to an employee during a RIF.

These regulations also proposed

extending the time limit for use of the

liquidation provision because of closure

from 90 days to 120 days.

OPM received three written

comments on these proposed

regulations: Two from agencies, and one

from an individual who suggested other

changes to the RIF system.

Both agencies favored our proposed

change to provide that an agency may

use a permissive temporary exception

without time limitation to satisfy a

Government obligation to the retained

employee. For example, a Department of

Defense employee is entitled to 120

days written specific notice before

release in a significant RIF. If the

activity conducting the RIF

subsequently finds that it must make a

worse offer than that specified in the

employee’s original RIF notice, the

employee is entitled to a new RIF notice

period of 120 days. This means that the

activity must use a permissive

temporary exception to retain the

released employee on its rolls past the

effective date of the RIF in order to meet

its notice obligation. Under a permissive

temporary exception, the activity

determines the released employee’s

retention rights on the effective date of

the RIF, but the activity does not

actually implement the action until it

provides the employee with full specific

notice of the RIF.

In conforming changes, 5 CFR

351.608(c) is redesignated as 5 CFR

351.608(d) and 5 CFR 351.608(d) is

redesignated as 5 CFR 351.608(e).

One agency also requested that OPM

expand the liquidation provision found

in 5 CFR 351.605 from the present 90

days to 1 year. The liquidation

provision in 5 CFR 351.605 allows a

closing activity to release employees

without regard to their respective

service dates in a closure situation,

provided that the employees have the

same tenure and veterans’ preference

status.

Under the current regulations, a

liquidation situation exists when an

agency will abolish all positions in a

competitive area within 90 days. In

separating employees by RIF, the agency

must release employees in group and

subgroup order consistent with 5 CFR

351.601(a). (An agency may not apply

this section to release an employee who

is entitled to retention in the subgroup

under 5 CFR 351.606 because of

reemployment after military service.)

However, the liquidation provision

permits the agency, at its discretion, to

release employees within a subgroup
2678 Federal Register / Vol. 60, No. 7 / Wednesday, January 11, 1995 / Rules and Regulations

regardless of the employees’ relative

retention standing for up to 90 days

before closure of an activity. The 90 day

liquidation provision was implemented

when the minimum specific RIF notice

period was 30 days rather than the

present standard of 60 days notice (i.e.,

the liquidation provision was three

times the basic RIF notice period).

We proposed revision of 5 CFR

351.605 to provide that the liquidation

provision is applicable in a closure

situation when an agency will abolish

all positions in a competitive area

within 120 days. After considering the

agency’s comments, 5 CFR 351.605 is

revised to provide that the liquidation

provision is applicable when an agency

will abolish all positions in a

competitive area within 180 days (i.e.,

three times the basic RIF notice period

of 60 days). The new 180 day standard

for the liquidation provision will also

provide the Department of Defense with

needed flexibility in carrying out large

scale closures in which a Defense

activity must provide its employees

with a minimum of 120 days RIF notice

because of a significant RIF. An

employee released from a competitive

level under the liquidation provision

found in 5 CFR 351.605 may still have

assignment rights to a position in a

different competitive level, as provided

in subpart G of part 351.

RIF Notices

On June 8, 1993, OPM published

interim RIF notice regulations in the

Federal Register at 58 FR 32047,

effective upon publication with a 60 day

comment period. These regulations

implement section 4433 of Public Law

102–484 (the National Defense

Authorization Act for Fiscal Year 1993),

which revised 5 U.S.C. 3502 by adding

new sections (d) and (e) containing new

notice requirements for RIF actions.

OPM received five written comments

on these interim regulations: Three from

agencies and two from local offices of

national unions.

All three agencies favored the

proposal. However, one agency

requested that OPM expand 5 CFR

351.802(b) to affirm that an agency must

provide an employee who receives a

specific RIF notice with a copy of

OPM’s retention regulations, upon the

employee’s request. We have reviewed

the proposed language and believe that

5 CFR 351.802(b) as written specifically

covers this requirement.

A second agency requested that OPM

revise 5 CFR 351.803(b) to provide that

the agency must meet special notice

requirements only when 50 or more

employees are actually separated from a

competitive area. In the interim

regulations, 5 CFR 351.803(b) provides

that an agency must provide additional

notice when 50 or more employees in a

competitive area receive specific RIF

separation notices. The agency must

send this additional notice of a large RIF

to (1) the appropriate State dislocated

worker unit under the Job Training

Partnership Act, (2) the chief elected

local government official where the

separations will take place, and (3)

OPM. We retained the language in 5

CFR 351.803(b) without revision

because we believe that an employee

who receives a specific notice of

separation in a large RIF is entitled to

the same benefits as an employee who

is actually separated.

The two union locals were concerned

that OPM could approve a shortened

RIF notice period that would be

detrimental to their members. Both

locals are in Department of Defense

(DoD) activities. 5 CFR 351.801(a)(2)

provides that DoD components must

provide their employees with a

minimum of 120 days specific notice

when a significant number of employees

will be separated by RIF.

5 U.S.C. 3502(e)(1) provides that the

President of the United States may

approve a RIF notice period of less than,

as appropriate, 60 or 120 days, based on

unforeseeable circumstances. However,

5 U.S.C. 3503(e)(3) provides that a

shortened RIF notice period must

always cover at least 30 days. E.O.

12828, approved on January 5, 1993 (58

FR 2965), authorizes OPM to shorten the

applicable mandatory 60 or 120 day

specific written RIF notice requirement

to a minimum of 30 days. 5 CFR

351.801(b) implements E.O. 12828 and

authorizes the Director of OPM to

approve a shortened notice period at the

request of an agency head or designee.

We have adopted 5 CFR 351.801(b)

without revision because OPM is

limited by law and Executive Order in

granting exceptions to the minimum RIF

notice period.

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.

List of Subjects in 5 CFR Part 351

Government employees.

Office of Personnel Management.

James B. King,

Director.

Accordingly, OPM is adopting as final

its interim and proposed rules

published under 5 CFR part 351 on May

26, 1992, at 57 FR 21890 (as corrected

on June 27, 1994, at 59 FR 32871), on

June 8, 1993, at 58 FR 32047, and on

May 27, 1994, at 59 FR 27509, with the

following changes:

PART 351—REDUCTION IN FORCE

1. The authority citation for part 351

is revised to read as follows:

Authority: 5 U.S.C. 1302, 3502, 3503;

S351.801 also issued under E.O. 12828, 58

FR 2965.

2. Section 351.605 is revised to read

as follows:

§ 351.605 Liquidation provisions.

When an agency will abolish all

positions in a competitive area within

180 days, it must release employees in

group and subgroup order consistent

with § 351.601(a). At its discretion, the

agency may release the employees in

group order without regard to retention

standing within a subgroup, except as

provided in § 351.606. When an agency

releases an employee under this section,

the notice to the employee must cite this

authority and give the date the

liquidation will be completed. An

agency may also apply §§ 351.607 and

351.608 in a liquidation.

3. In § 351.608, paragraphs (c) and (d)

are redesignated as paragraphs (d) and

(e) respectively, paragraph (b) is revised,

and paragraph (c) is added, to read as

follows:

§ 351.608 Permissive temporary

exceptions.

* * * * *

(b) Exception not to exceed 90 days.

An agency may make a temporary

exception for not more than 90 days

when needed to continue an activity

without undue interruption.

(c) Government obligation. An agency

may make a temporary exception to

satisfy a Government obligation to the

retained employee.

* * * * *

4. Subpart H, consisting of §§ 351.801

through 351.806, is revised to read as

follows:

Subpart H—Notice to Employee

Sec.

351.801 Notice period.

351.802 Content of notice.

351.803 Notice of eligibility for

reemployment and other placement

assistance.

351.804 Expiration of notice.

351.805 New notice required.

351.806 Status during notice period.

351.807 Certification of Expected

Separation.
Federal Register / Vol. 60, No. 7 / Wednesday, January 11, 1995 / Rules and Regulations 2679

Subpart H—Notice to Employee

§ 351.801 Notice period.

(a)(1) Except as provided in paragraph

(b) of this section, each competing

employee selected for release from a

competitive level under this part is

entitled to a specific written notice at

least 60 full days before the effective

date of release.

(2) Under authority of section 4433 of

Public Law 102–484, 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.

This 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.

(3) At the same time an agency issues

a notice to an employee, it must give a

written notice to the exclusive

representative(s), as defined in 5 U.S.C.

7103(a)(16), of each affected employee

at the time of the notice. When a

significant number of employees will be

separated, an agency must also satisfy

the notice requirements of §§ 351.803

(b) and (c).

(b) When a reduction in force is

caused by circumstances not reasonably

foreseeable, the Director of OPM, at the

request of an agency head or designee,

may approve a notice period of less than

60 days, or a notice period of less than

120 days when a significant number of

Department of Defense employees will

be separated. The shortened notice

period must cover at least 30 full days

before the effective date of release. An

agency request to OPM shall specify:

(1) The reduction in force to which

the request pertains;

(2) The number of days by which the

agency requests that the period be

shortened;

(3) The reasons for the request; and

(4) Any other additional information

that OPM may specify.

(c) The notice period begins the day

after the employee receives the notice.

(d) When an agency retains an

employee under § 351.607 or § 351.608,

the notice to the employee shall cite the

date on which the retention period ends

as the effective date of the employee’s

release from the competitive level.

§ 351.802 Content of notice.

(a) The notice shall state specifically:

(1) The action to be taken and its

effective date;

(2) The employee’s competitive area,

competitive level, subgroup, service

date, and annual performance ratings of

record received during the last 4 years;

(3) The place where the employee

may inspect the regulations and record

pertinent to this case;

(4) The reasons for retaining a lowerstanding employee in the same

competitive level under § 351.607 or

§ 351.608;

(5) Information on reemployment

rights, except as permitted by

§ 351.803(a); and

(6) The employee’s right, as

applicable, to appeal to the Merit

Systems Protection Board under the

provisions of the Board’s regulations or

to grieve under a negotiated grievance

procedure. The agency shall also

comply with § 1201.21 of this title.

(b) When an agency issues an

employee a notice, the agency must,

upon the employee’s request, provide

the employee with a copy of OPM’s

retention regulations found in part 351

of this chapter.

§ 351.803 Notice of eligibility for

reemployment and other placement

assistance.

(a) An employee who receives a

specific notice of separation under this

part must be given information

concerning the right to reemployment

consideration under subparts B

(Reemployment Priority List) and C

(Displaced Employee Program) of part

330 of this chapter. The employee also

must be given information concerning

how to apply for unemployment

insurance through his or her appropriate

State program. This information must be

provided either in or with the specific

reduction in force notice, or as a

supplemental notice to the employee.

(b) When 50 or more employees in a

competitive area receive separation

notices under this part, the agency must

provide written notification of the

action, at the same time it issues

specific notices of separation to

employees, to:

(1) The State dislocated worker

unit(s), as designated or created under

title III of the Job Training Partnership

Act;

(2) The chief elected official of local

government(s) within which these

separations will occur; and

(3) OPM.

(c) The notice required by paragraph

(b) of this section must include:

(1) The number of employees to be

separated from the agency by reduction

in force (broken down by geographic

area or other basis specified by OPM);

(2) The effective date of the

separations; and

(3) Any other information specified by

OPM, including information needs

identified from consultation between

OPM and the Department of Labor to

facilitate delivery of placement and

related services.

§ 351.804 Expiration of notice.

A notice expires except when

followed by the action specified, or by

an action less severe than specified, in

the notice or in an amendment made to

the notice before the agency takes the

action. An agency may not take the

action specified before the effective date

in the notice. An action taken after the

specific date in the notice shall not be

ruled invalid for that reason except

when it is challenged by a higherstanding employee in the competitive

level who is reached out of order for

reduction in force as a result of the

action.

§ 351.805 New notice required.

An employee is entitled to a written

notice of, as appropriate, at least 60 or

120 full days if the agency decides to

take an action more severe than first

specified.

§ 351.806 Status during notice period.

When possible, the agency shall retain

the employee on active duty status

during the notice period. When in an

emergency the agency lacks work or

funds for all or part of the notice period,

it may place the employee on annual

leave with or without his or her consent,

or leave without pay with his or her

consent, or in a nonpay status without

his or her consent.

§ 351.807 Certification of Expected

Separation.

(a) For the purpose of enabling

otherwise eligible employees to be

considered for eligibility to participate

in dislocated worker programs under

the Job Training Partnership Act

administered by the U.S. Department of

Labor, an agency may issue a Certificate

of Expected Separation to a competing

employee who the agency believes, with

a reasonable degree of certainty, will be

separated from Federal employment by

reduction in force procedures under this

part. A certification may be issued up to

6 months prior to the effective date of

the reduction in force.

(b) This certification may be issued to

a competing employee only when the

agency determines:

(1) There is a good likelihood the

employee will be separated under this

part;

(2) Employment opportunities in the

same or similar position in the local
2680 Federal Register / Vol. 60, No. 7 / Wednesday, January 11, 1995 / Rules and Regulations

commuting area are limited or

nonexistent;

(3) Placement opportunities within

the employee’s own or other Federal

agencies in the local commuting area are

limited or nonexistent; or

(4) If eligible for optional retirement,

the employee has not filed a retirement

application or otherwise indicated in

writing an intent to retire.

(c) A certification is to be addressed

to each individual eligible employee

and must be signed by an appropriate

agency official. A certification must

contain the expected date of reduction

in force, a statement that each factor in

paragraph (b) of this section has been

satisfied, and a description of Job

Training Partnership Act programs, the

Interagency Placement Program, and the

Reemployment Priority List.

(d) A certification may not be used to

satisfy any of the notice requirements

elsewhere in this subpart.

(e) An agency determination of

eligibility for certification may not be

appealed to OPM or the Merit Systems

Protection Board.

(f) An agency may also enroll eligible

employees in the Interagency Placement

Program and the Reemployment Priority

List up to 6 months in advance of a

reduction in force. For requirements and

criteria for these programs, see subparts

B and C of part 330 of this chapter.

[FR Doc. 95–643 Filed 1–10–95; 8:45 am]

BILLING CODE 6325–01–M

DEPARTMENT OF AGRICULTURE

Commodity Credit Corporation

7 CFR Part 1425

RIN 0560–AD70

Cooperative Marketing Associations;

Eligibility Requirements for Price

Support

AGENCY: Commodity Credit Corporation,

USDA.

ACTION: Final rule.

SUMMARY: This final rule adopts,

without change, the proposed rule

published in the Federal Register at 59

FR 44947–44952 on August 31, 1994.

This rule amends the regulations

governing the participation of

cooperative marketing associations

(CMA) in Commodity Credit

Corporation (CCC) price support

programs to ensure: the equitable

treatment of CMA members and

individual producers; the Government

does not accept undue risk in providing

CMA price support program benefits;

and the efficient delivery of CMA price

support program benefits. This rule:

changes CMA bylaw requirements to

reflect current CMA organizational and

operational procedures; requires

approved cotton CMA retention of

services provided by servicing agent

banks; requires approved CMA

monitoring of payment they receive on

behalf of their members to ensure that

member payments do not exceed

payment limits; and makes other

administrative changes.

EFFECTIVE DATE: January 11, 1995.

FOR FURTHER INFORMATION CONTACT:

Richard M. Ackley, Chief, Cooperative

and Analysis Branch; Cotton, Grain, and

Rice Price Support Division,

Consolidated Farm Service Agency,

USDA, P.O. Box 2415, Washington, DC

20013–2415.

SUPPLEMENTARY INFORMATION:

Executive Order 12866

This final rule has been determined to

be not significant for purposes of

Executive Order 12866 and, therefore,

has not been reviewed by Office of

Management and Budget (OMB).

Federal Assistance Program

The title and number of the Federal

Assistance Program, as found in the

Catalog of Federal Domestic Assistance,

to which this rule applies are

Commodity Loans and Purchases—

10.051.

Regulatory Flexibility Act

It has been determined that the

Regulatory Flexibility Act is not

applicable because CCC is not required

by 5 U.S.C. 553 or any other provision

of law to publish a notice of proposed

rulemaking with respect to the subject

matter of these determinations.

Environmental Evaluation

It has been determined by an

environmental evaluation that this

action will have no significant impact

on the quality of human environment.

Executive Order 12372

This program is not subject to the

provisions of Executive Order 12372,

which requires intergovernmental

consultation with State and local

officials. See the Notice related to 7 CFR

part 3015, subpart V, into Federal

Register at 48 FR 29115 (June 24, 1983).

Executive Order 12778

This final rule has been reviewed

pursuant to Executive Order 12778. To

the extent State and local laws are in

conflict with these regulatory

provisions, it is the intent of CCC that

the terms of the regulations prevail.

Prior to any judicial action in a court of

competent jurisdiction, administrative

review under 7 CFR part 780 must be

exhausted.

Paperwork Reduction Act

Public reporting burden for all

collections is estimated to average from

1 to 2 hours per response, including

time for reviewing instructions,

searching existing data sources,

gathering and maintaining the data

needed, and competing and reviewing

the collection of information. The

information collections have previously

been cleared under the current

regulations by OMB, and assigned OMB

No. 0560–0040.

Comments

No comments were received during

the comment period which ended on

September 30, 1994.

List of Subjects in 7 CFR Part 1425

Cooperatives, Price support programs,

Reporting and recordkeeping

requirements.

Accordingly, 7 CFR part 1425 is

amended as follows:

PART 1425—COOPERATIVE

MARKETING ASSOCIATIONS

1. The authority citation for 7 CFR

part 1425 is revised to read as follows:

Authority: 7 U.S.C. 1421(a), 1441, 1444(a),

1446(d), and 1447; 15 U.S.C. 714b, 714c, and

714j.

2. Section 1425.3 is amended.

A. Revising paragraph (d),

B. Redesignating paragraphs (i) and (j)

as paragraphs (j) and (k) respectively,

C. Adding a new paragraph (i), and

D. Revising redesignated newly

redesignated paragraphs (j) and (k):

§ 1425.3 Definitions.

* * * * *

(d) Authorized commodity means

those commodities for which an

approved cooperative may apply for

price support, including barley, canola,

corn, cotton, flaxseed, honey, shorn

mohair, mustard seed, oats, rapeseed,

rice, rye, safflower, seed cotton, shorn

wool, sorghum, soybeans, sunflower

seed, and wheat.

* * * * *

(i) Participate in a Price Support

Program means the pledging, on behalf

of members, of an eligible commodity as

collateral for CCC price support loans,

entering into purchase agreements, and,

when applicable, obtaining loan

deficiency payments.

(j) Person means an individual, joint

stock company, corporation, estate or