[Federal Register: April 15, 2008 (Volume 73, Number 73)]
[Proposed Rules]
[Page 20180-20181]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15ap08-19]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
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.
========================================================================
[[Page 20180]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 351
RIN 3206-AL64
Competitive Area
AGENCY: Office of Personnel Management.
ACTION: Proposed rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: The U.S. Office of Personnel Management (OPM) is issuing
proposed regulations that provide agencies with the option of
establishing a reduction in force (RIF) competitive area comprised only
of pay band positions. An agency would have this option only when the
competitive area would otherwise include pay band positions and other
positions not covered by a pay band system.
DATES: We will consider comments received on or before May 15, 2008.
ADDRESSES: You may submit comments, identified by RIN 3206-AL64, by any
of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
E-mail: employ@opm.gov. Include ``RIN 3206-AL64'' in the
subject line of the message.
Fax: (202) 606-2329.
Mail: Angela Bailey, Deputy Associate Director for Talent
and Capacity Policy, U.S. Office of Personnel Management, Room 6551,
1900 E Street, NW., Washington, DC 20415-9700.
Hand Delivery/Courier: OPM, Room 6551, 1900 E Street, NW.,
Washington, DC, 20415.
FOR FURTHER INFORMATION CONTACT: Michael J. Mahoney by telephone on
202-606-0960, by FAX on 202-606-2329, by TDD on 202-418-3134, or by e-
mail at employ@opm.gov.
SUPPLEMENTARY INFORMATION: Section 351.402(b) of OPM's regulations
presently provides that an agency must define a RIF competitive area
solely on the basis of the agency's organizational unit(s) and
geographical location. Once defined, the competitive area includes all
employees covered by that definition.
OPM is adding new section 351.402(e) to provide that when a
competitive area defined under section 351.402(b) includes both pay
band positions and positions not covered by a pay band, the agency may,
at its discretion, define a competitive area, that is otherwise
consistent with section 351.402(b), to include either only pay band
positions or only positions not covered by a pay band system. In a
related change, OPM is revising section 351.403(a)(2) to clarify how an
agency establishes RIF competitive levels for pay band positions and
for other positions.
Explanation
OPM's regulations cover RIF competition involving positions under
different pay schedules. For example, section 351.203 includes the RIF
definition of ``Representative Rate'' for traditional General Schedule
(GS) and Federal Wage System (FWS) positions, and for alternative pay
schedule positions (e.g., pay band, unclassified, and negotiated rate
positions). The RIF regulations also cover how an agency determines the
retention standing of employees in GS/FWS positions and in positions
with an alternative pay schedule.
In a recent review of the RIF regulations, and as more and more
agencies move portions of their workforces into alternative systems,
OPM found 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). For example, a
pay band personnel system may also include specific staffing,
classification, pay, and performance management provisions that differ
significantly from the GS and/or FWS system. These distinctions between
pay band and other positions could be magnified when all of the
positions are included in the same RIF competitive area.
To establish a RIF competitive level to determine which employee is
released from the present position, section 351.403(a)(2) provides that
the agency use the official position description that documents the
duties, responsibilities, and qualifications tied to each competing
employee's official position of record. Consistent with the
regulations, a RIF competitive level for GS or FWS employees only
includes interchangeable positions having the same grade,
classification series, work schedule, type of service (e.g.,
competitive or excepted), and additional criteria covered in section 5
CFR 351.403. However, in a pay band system a single pay band may
combine multiple grades and classification series that are documented
on a single generic official position description. In operation, the
agency may, and in some cases does, supplement this position
description with other documentation to distinguish actual work
assignments among the pay band positions. A separate competitive area
for pay band positions eliminates the requirement to create position
descriptions that must conform to those in another personnel system
(e.g., GS and/or FWS).
Sections 351.701(b) and (c) provide that a GS or FWS competitive
service employee has potential ``bump'' and ``retreat'' rights to
positions in the competitive area that are no more than three grades or
grade-intervals below the employee's official position of record.
Section 351.701(c) also provides a preference eligible with a
compensable service-connected disability of 30% or more with a
potential retreat right of up to five grades or grade-intervals from
the employee's official position of record. However, the compensation
architecture of a pay band system does not equate efficiently to the
grade/grade-interval structure used to determine the assignment rights
of GS or FWS employees. These differences may make it difficult for an
agency to determine equivalent assignment rights from pay band to GS/
FWS positions or vice versa. A separate competitive area for pay band
positions eliminates these difficulties in determining the potential
assignment rights of pay band and GS/FWS employees who are released
from a retention register by RIF and makes it easier to make
comparisons.
Revisions to Competitive Level
Section 351.403(a)(2) is renumbered as section 351.403(a)(2)(i) and
revised to clarify that, except as provided in new section
351.403(a)(2)(ii) for pay band positions, competitive level
determinations are based on each employee's official position of record
[[Page 20181]]
(including the official position description), not the employee's
personal qualifications.
New section 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 description with other
applicable records that document the employee's actual duties and
responsibilities.
Revisions to Competitive Area
New section 351.402(e) provides that when a competitive area
defined under section 351.402(b) includes pay band positions and
positions not covered by a pay band, the agency may, at its discretion,
define a competitive area otherwise consistent with section 351.402 to
include only pay band positions. Section 351.402(b) is revised to
include a reference to new section 351.402(e).
Examples of Separate Competitive Area for Pay Band Positions
Example 1
Under section 351.402(b) an agency defines its activities in
Memphis and Vicksburg to be in the same competitive area. At present
this competitive area would include GS, FWS, and pay band positions.
At its option the agency may apply new section 351.402(e) and
define a separate competitive area that includes only its pay band
positions in Memphis and Vicksburg. Under section 351.402(e), the
competitive area for pay band positions must otherwise conform to
section 351.402(b), that is, be based on the same organizational unit
and geographical location as the remaining positions (i.e., the GS and
FWS positions in the original competitive area).
Example 2
Under current regulations, an agency defines its headquarters to be
one competitive area that includes GS, FWS, and pay band positions.
At its option the agency may apply new section 351.402(e) and
define a separate competitive area that includes only its pay band
positions in the headquarters. Under section 351.402(e) the competitive
area for pay band positions must still be based on the same
organizational unit and geographical location as the remaining
positions, that is the GS and FWS positions that were in the original
competitive area (the entire headquarters).
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.
Linda M. Springer,
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; sec. 351.801 also issued
under E.O. 12828, 58 FR 2965.
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 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.
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. E8-7968 Filed 4-14-08; 8:45 am]
BILLING CODE 6325-39-P