[Federal Register Volume 73, Number 155 (Monday, August 11, 2008)]
[Rules and Regulations]
[Pages 46530-46532]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-18447]
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OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 351
RIN 3206-AL64
Competitive Area
AGENCY: U.S. Office of Personnel Management.
ACTION: Final rule.
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SUMMARY: The U.S. Office of Personnel Management (OPM) is issuing final
regulations that provide agencies with the option of establishing a
reduction in force (RIF) competitive area that only includes pay band
positions. An agency has this option when a RIF competitive area
otherwise includes pay band positions and other positions that are not
covered by one or more pay bands.
DATES: Effective Date: These regulations are effective August 11, 2008.
FOR FURTHER INFORMATION CONTACT: Thomas A. Glennon by telephone on 202-
606-0960, by Fax on 202-606-2329, by TDD on 202-418-3134, or by e-mail
at [email protected].
SUPPLEMENTARY INFORMATION: On April 15, 2008, OPM published proposed
reduction in force (RIF) regulations in the Federal Register at 73 FR
20180. Interested parties could submit comments to OPM on the
regulations through May 15, 2008. OPM received timely comments from
three agencies, two unions, and two individuals on these proposed
regulations. We considered all of the timely comments in publishing
this final regulation. Below is a discussion of the specific comments.
Discussion of Comments
All three agencies concurred with the option of establishing a
separate competitive area for pay band positions. One agency supported
our proposed regulation without any additional comments or suggestions.
Two agencies concurred, but had additional comments. One agency
suggested that OPM further revise the RIF regulations to allow agencies
the additional option of establishing separate competitive areas for
individual pay band systems when a competitive area includes more than
one pay band system. OPM did not adopt this suggestion. Because all pay
band systems have common characteristics flowing from the consolidation
of former graded positions into broad pay bands, we see no need to
further allow agencies the additional option of establishing separate
competitive areas for individual pay
[[Page 46531]]
bands when these individual pay bands would otherwise be included in
the same competitive area.
The other agency suggested that OPM include criteria for the agency
to consider when deciding whether to define separate competitive areas
under Sec. 351.402(e) for pay band and for non-pay band positions. The
agency also suggested that OPM provide criteria on what types of
documentation are appropriate under Sec. 351.403(a)(2)(ii) to
supplement an employee's official position description for purposes of
establishing one or more pay band competitive levels. OPM did not adopt
either suggestion. Because each agency-specific RIF situation is
unique, OPM believes that the agency conducting the RIF has the best
information to make RIF-related decisions, including the definition of
what is an appropriate competitive area or competitive areas for its
competing employees, and what documentation is appropriate to
supplement the position descriptions of employees in pay band
positions. Section 351.204 provides that each agency covered by 5 CFR
part 351 is responsible for all decisions when following and applying
the RIF regulations if the agency determines that a RIF is necessary.
This agency also suggested that OPM revise the retention
regulations to state that an agency retains the right to potentially
redefine one or more competitive areas if the agency finds it necessary
to conduct a subsequent RIF. OPM did not adopt this suggestion. Present
Sec. 351.201(c) provides that the agency's RIF decisions must be
uniform and consistent with 5 CFR part 351 in any one RIF (i.e., the
agency may potentially make different decisions applying the 5 CFR part
351 regulations to a subsequent RIF).
Finally, this agency suggested that OPM include definitions of
``competitive area'' and ``competitive level'' in section 351.203
(``Definitions''). OPM did not adopt this suggestion. Section 351.402
specifically covers RIF competitive areas while section 351.403
specifically covers RIF competitive levels.
Regarding the two union comments, both unions commented that the
proposed regulations would allow agencies to improperly target certain
employees for RIF, while unfairly restricting the placement
opportunities of these employees. OPM does not agree with this
assertion. Agencies must apply the same level of objectivity and
administrative probity in using these provisions as they do in making
any personnel-related decision. An employee who believes that a
competitive area is unlawfully constituted may, as applicable, contest
the agency's action. Further, the RIF competitive area is only one of
many factors that impact an employee's placement opportunities. Factors
such as an individual's veterans' preference status, tenure (e.g.,
permanent v. temporary), performance appraisal (e.g., Exceptional v.
Fully Successful), and years of service all play a part in an
employee's final outcome in a RIF scenario.
One union, in objecting to the proposed regulation, commented that
potential separate competitive areas in a pay band environment reduces
the relative weight of seniority in RIF competition, which the union
suggests is a hallmark of the RIF system. OPM disagrees. The proposed
RIF regulation continues to assign the same relative weight to each of
the four retention factors mandated in 5 U.S.C. 3502(a)(1)-(4): (1)
Tenure (i.e., type of appointment), (2) veterans' preference, (3) total
creditable civilian and uniformed service, and (4) additional retention
service credit for performance. We note that although the RIF
regulation, and the determining factors, have been modified through the
years, the one true constant of the RIF system since 1876 has been
protection based on an individual's veterans' preference status, not
necessarily the retention of senior employees.
This union also commented that our proposal to allow separate RIF
competitive areas for pay band environments was based on an assumption
that a unified competitive area might create difficulty for the agency
facing a RIF. The union suggested that changes to governmentwide rules
should be based on facts, not guesses. To clarify, from our review of
demonstration projects we know that certain inconsistencies exist
between pay band positions and positions covered by the General
Schedule (GS) or Federal Wage System (FWS). For example, pay band
positions are subject to different rules than other positions covered
by traditional pay systems (i.e., GS and FWS positions): (1) Each pay
band covers a wide salary range that encompass multiple GS or FWS
grades, (2) pay band positions are generally covered by generic
position descriptions while GS and FWS positions have specific position
descriptions keyed in part to the classification of each position, and
(3) pay band positions are generally more closely linked to performance
incentives than GS and FWS positions. What we do not know is the size
or scope of any one RIF an agency may be facing. RIFs involving large
numbers of pay band and non-pay band positions will be more disruptive
than those with few mixed-positions. This is why we stated in the
supplementary information of the proposed regulation published on April
15, 2008, at page 73 FR 20180, that significant inconsistencies ``may''
result when a RIF competitive area includes pay band positions and
positions covered by the General Schedule (GS) or Federal Wage System
(FWS). The new Sec. 351.402(e) is an agency option, not a requirement,
to permit agencies to assess their situation and determine how best to
apply the RIF regulations to suit their needs. On May 21, 2008, at 73
FR 29387, OPM published a final regulation covering how an agency may
conduct a RIF in a competitive area that includes pay band and other
positions not covered by a pay band system if the agency chooses that
option.
Of the two individuals who commented, one individual suggested that
OPM include a definition of ``pay band'' for purposes of the 5 CFR part
351 regulations. OPM did not adopt this suggestion. Each pay band
system includes a specific definition of pay band applicable to that
pay band system.
This individual also suggested that OPM provide criteria on what
types of records may be considered under Sec. 351.403(a)(2)(ii) to
supplement an employee's official position description when
establishing pay band competitive levels. OPM did not adopt this
suggestion. As noted above in response to an agency's similar
suggestion, OPM believes that the agency conducting the RIF has the
best information to make RIF-related decisions, including what records
are appropriate to supplement the position descriptions of employees in
pay band positions.
The other individual is concerned about how a separate competitive
area could restrict the potential retention rights of employees who are
not covered by a pay band system. As noted above, OPM covered its
rationale and justification for this option in the ``Explanation''
material for the proposed regulations published on April 15, 2008, at
page 73 FR 20180. One competitive area definition does not necessarily
make an individual employee more or less subject to release by RIF than
if the agency had retained or implemented a different competitive area
definition.
Revisions Made by Final Regulations
OPM is adopting the proposed regulations without change. The final
regulation makes the following changes to competitive area and
competitive level that are summarized below.
[[Page 46532]]
Revisions to Competitive Area
New Sec. 351.402(e) provides that when an agency finds that a
competitive area defined under Sec. 351.402(b) includes pay band
positions and positions not covered by a pay band, at its discretion
the agency may define a competitive area otherwise consistent with
Sec. 351.402 to include only pay band positions.
Section 351.402(b) is also revised to include a reference to new
Sec. 351.402(e).
Revisions to Competitive Level
Section 351.403(a)(2) is renumbered as Sec. 351.403(a)(2)(i) and
revised to clarify that, except as provided in new Sec.
351.403(a)(2)(ii) for pay band positions, competitive level
determinations are based on each employee's official position of record
(including the official position description), not the employee's
personal qualifications.
New Sec. 351.403(a)(2)(ii) provides that, to establish a
competitive level comprised of pay band positions, an agency may
supplement an employee's official position with other applicable
records that document the employee's actual duties and
responsibilities. Note that Sec. 351.403(a)(2)(ii) also applies to RIF
competition in a competitive area that includes pay band and other
positions.
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.
U.S. Office of Personnel Management.
Linda M. Springer,
Director.
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Accordingly, OPM is amending part 351 of title 5, Code of Federal
Regulations, as follows:
PART 351--REDUCTION IN FORCE
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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.
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2. In Sec. 351.402, paragraph (b) is revised, and paragraph (e) is
added, to read as follows:
Sec. 351.402 Competitive area.
* * * * *
(b) A competitive area must be defined solely in terms of the
agency's organizational unit(s) and geographical location and, except
as provided in paragraph (e) of this section, it must include all
employees within the competitive area so defined. A competitive area
may consist of all or part of an agency. The minimum competitive area
is a subdivision of the agency under separate administration within the
local commuting area.
* * * * *
(e) When an agency finds that a competitive area defined under
paragraph (b) of this section includes pay band positions and positions
not covered by a pay band, the agency may, at its discretion, define a
separate (and additional) competitive area, otherwise consistent with
paragraph (b) of this section, to include only pay band positions. The
original competitive area would then include only the remaining
positions (i.e., those positions not covered by a pay band).
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3. In Sec. 351.403, paragraph (a)(2) is revised to read as follows:
Sec. 351.403 Competitive level.
(a) * * *
(2)(i) Except as provided in paragraph (a)(2)(ii) of this section
for pay band positions, competitive level determinations are based on
each employee's official position of record (including the official
position description), not the employee's personal qualifications.
(ii) To establish a competitive level comprised of pay band
positions, an agency may supplement an employee's official position of
record with other applicable records that document the employee's
actual duties and responsibilities.
* * * * *
[FR Doc. E8-18447 Filed 8-8-08; 8:45 am]
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