Reduction in Force

• Published date: 17 December 2020
• Citation: 85 FR 81839
• Record Number: 2020-26347
• Section: Proposed rules
• Court: Personnel Management Office

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.

Proposed Rules Federal Register

81839

Vol. 85, No. 243

Thursday, December 17, 2020

1

Some of the provisions of E.O. 13839 were

enjoined by the United States District Court for the

District of Columbia. Am. Fed’n of Gov’t Employees,

AFL–CIO v. Trump, 318 F. Supp. 3d 370 (D.D.C.

2018). The principles pertaining to RIFs, however,

were not among those provisions that were

enjoined. Id. at 440. The plaintiffs did not seek

further judicial review of this decision, so this

determination is final. In any event, the decision

imposing the injunction against other provisions of

the E.O. was subsequently reversed, see Am. Fed’n

of Gov’t Employees, AFL–CIO v. Trump, 929 F.3d

748 (D.C. Cir. 2019), and thus no longer has any

effect.

OFFICE OF PERSONNEL

MANAGEMENT

5 CFR Parts 351 and 430

RIN 3206–AO06

Reduction in Force

AGENCY

: Office of Personnel

Management.

ACTION

: Proposed rule.

SUMMARY

: The Office of Personnel

Management (OPM) is issuing a

proposed regulation to revise its

reduction-in-force (RIF) regulations to

set forth the principle that agencies

should prioritize performance over

length of service when determining

which employees will be retained in a

RIF following regulations that OPM will

issue. In addition, OPM is exercising its

authority to modify the order of

retention, clarify tenure group

definitions, and modify how credit for

performance is computed.

DATES

: Comments must be received on

or before January 19, 2021.

ADDRESSES

: You may submit comments,

identified by the docket number or

Regulation Identifier Number (RIN) for

this proposed rulemaking, by any of the

following methods:

•Federal eRulemaking Portal: http://

www.regulations.gov. Follow the

instructions for sending comments.

All submissions received must

include the agency name and docket

number or RIN for this document. The

general policy for comments and other

submissions from members of the public

is to make these submissions available

for public viewing at http://

www.regulations.gov as they are

received without change, including any

personal identifiers or contact

information.

FOR FURTHER INFORMATION CONTACT

:

Kimberly A. Holden by email at

employ@opm.gov or by fax at (202) 606–

4430.

SUPPLEMENTARY INFORMATION

: The OPM

is proposing to revise its regulations

governing reduction in force and related

technical changes under statutory

authority vested in it by Congress in 5

U.S.C. 1103, 3502, 3596, 4305, and

4315. The regulations will also assist

agencies in carrying out certain

principles set forth by the President in

Executive Order (E.O.) 13839, titled:

‘‘Promoting Accountability and

Streamlining Removal Procedures

Consistent with Merit Systems and

Principles’’ consistent with law, and

update current procedures to make them

more efficient and effective. The

proposed regulations will change

existing regulations regarding RIF

procedures to modify the order of

retention and enhance the value of

performance relative to length of service

when determining which employees

will be retained in a RIF.

The proposed regulations will assist

agencies in better aligning, consistent

with law, to certain of the principles

articulated by the President to the

Executive Branch in E.O. 13839 and

update current procedures to make them

more efficient and effective.

1

Apart from

OPM’s existing authority to promulgate

regulations relating to reductions in

force, 5 U.S.C. 3502, Section 7 of the

E.O. directs OPM to propose revisions to

existing regulations, as needed, to

effectuate the principles set forth in

section 2, including those pertaining to

RIFs.

Reduction in Force

Section 2(j) of E.O. 13839 calls on

agencies to prioritize performance over

length of service in determining who

will be retained in a RIF. Section 7 of

the E.O. directs OPM to examine

whether existing regulations effectuate

the principles set forth in section 2 of

the Order. It directs OPM, ‘‘to the extent

necessary or appropriate,’’ to propose

for notice and public comment

appropriate regulations to effectuate the

principles set forth in Section 2.

After conducting this examination,

OPM, under its statutory authority in 5

U.S.C. 3502, is proposing, in accordance

with the procedural requirements under

5 U.S.C. 1103(b) and the Administrative

Procedure Act, to amend its regulations

at Subpart E of 5 CFR part 351 and to

make corresponding changes to

Subparts B and Subpart G of 5 CFR part

351 and to Subpart B of 5 CFR part 430

to prioritize performance over length of

service in a RIF. In addition, we are

modifying the order of retention at 5

CFR 351.501. Specifically, when

determining the order in which

employees are placed on a RIF retention

register, agencies will do so on the basis

of tenure first, followed by performance,

then veterans’ preference, and finally

length of service, as outlined in further

detail below. In addition, we are

proposing to clarify the definition of

tenure groups.

Proposed § 351.501 Order of retention

establishes that competing employees in

a RIF will be classified on a retention

register on the basis of (in descending

order): (1) Tenure of employment, (2)

performance, (3) veterans’ preference,

and (4) length of service. This section

also clarifies that the order of retention

provisions applies to employees in both

the competitive and excepted services.

Under current regulations at 5 CFR

351.501, the order of retention for

classifying competing employees on a

retention register is (in descending

order): Tenure of employment, veterans’

preference, length of service, and

performance. Length of service is

augmented by performance; an

employee receives additional retention

service credit (i.e., additional years of

service) based on the employee’s

applicable ratings of record. OPM is

proposing to modify the order of

retention to be: Tenure of employment,

performance, veterans’ preference, and

length of service.

Under the current regulations at 5

CFR 351.504, credit for performance is

used to supplement an employee’s

length of service for purposes of

determining an employee’s standing on

a retention register (both of these

retention factors are expressed in years).

An employee receives additional

retention service credit based on his or

her performance ratings of record and

their assigned summary levels. This

additional credit is added to the

employee’s length of service to

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determine that employee’s retention

standing within the employee’s

appropriate tenure group and veterans’

preference subgroup. An employee

receives additional credit for

performance (added to his or her length

of service) on the following basis: 20

additional years of service for each

rating of record with a Level 5

(Outstanding or equivalent) summary

level; 16 additional years of service for

each rating of record with a Level 4

(Exceeds Fully Successful or equivalent)

summary level; and 12 additional years

of service for each rating of record with

a Level 3 (Fully Successful or

equivalent) summary level, in

accordance with the summary levels

described in 5 CFR 430.208. The

additional years of service are added

together, divided by 3, and rounded up

to a whole number if necessary to

determine the number of years that will

be used to adjust an employee’s actual

service computation date and arrive at

an adjusted service computation date for

RIF purposes.

OPM is proposing to elevate

performance above length of service in

the RIF order of retention. We propose

to do this by establishing performance

as a subgroup within the appropriate

tenure group. The proposed order of

retention will be: (1) Tenure, (2)

performance, (3) veterans’ preference,

and (4) length of service. Under this

proposal, employees competing in a RIF

will first be sorted into their appropriate

tenure group; then within each tenure

group employees will be sorted by

performance in descending order based

on the total of the employee’s three most

recent ratings of record; then within

each tenure group and performance

subgroup, according to their veterans’

preference status or subgroup; then

within each tenure group, performance

subgroup, and veterans’ preference

subgroup, employees will be listed on

the retention register in terms of their

length of service based on each

employee’s actual service computation

date. Thus, length of service will be

used as a tie-breaker for employees with

the same tenure, three-year total of their

summary level performance ratings, and

veterans’ preference status (i.e., the first

three factors being equal, an employee

with longer length of service will be

listed ahead of an employee(s) with

shorter length of service).

We are proposing that an agency

determine an employee’s performance

standing by adding each employee’s

summary level performance rating for

the three most recent ratings of record

issued under 5 CFR part 430 (or

equivalent ratings of record established

in accordance with 5 CFR 430.201(c))

prior to the RIF. An agency will place

employees on a retention register based

on the total of each employee’s

summary level rating in descending

order, within each tenure group. In most

instances, an employee’s summary level

ratings of record for the three most

recent ratings of record will be added

together. Ratings of record will be

assigned a numerical value as follows in

conjunction with the patterns of

summary level in 5 CFR 430.208(d): 5

for a Level 5 (Outstanding or equivalent)

summary level, 4 for a Level 4 (Exceeds

Fully Successful or equivalent)

summary level, 3 for a Level 3 (Fully

Successful or equivalent) summary

level, 2 for a Level 2 (Minimally

Successful or equivalent) summary

level, 1 for a Level 1 (Unacceptable)

summary level. Agencies will list

competing employees on the retention

register in descending order (within the

same tenure group) based on the total of

their three most recent ratings of record.

OPM believes listing employees in

descending order (i.e., highest to lowest)

based on their total summary level

rating for three most recent ratings of

record is the most objective

methodology for these purposes, and

best implements the principle of

emphasizing performance over length of

service as set forth in E.O. 13839.

The following example illustrates and

contrasts the impact of performance

ratings of record and their summary

levels on a retention register under the

current rules and the proposed rules.

Consider the following employees in a

General Schedule (GS) 201–12 position:

Name Tenure

group Vets pref

subgroup

Rating of

record

summary

levels

Service

comp date

Al ...................................................................................................................... I A 3/3/3 01/01/1988

Barb ................................................................................................................. I A 5/4/5 01/01/2010

Carl .................................................................................................................. I A 3/4/3 01/01/2000

Dave ................................................................................................................. I A 4/5/4 01/01/1980

Emma ............................................................................................................... I A 3/4/4 01/01/2014

Under the current rules, a retention

register constructed in 2018 for these

employees would look like this, based

on retention factors considered in this

order: Tenure | Vets Pref | Adjusted

Service Computation Date (ASCD) —

i.e., the service computation date (SCD)

adjusted for additional service credit

(ASC) based on ratings of record and

summary levels:

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Under the proposed rules, the

retention register for these same

competing employees would look like

this, based on considering retention

factors in this order: Tenure |

Performance based on the total of the

employee’s summary levels | Vets Pref |

Service Computation Date:

Barb: I | 14 | A | 01/01/2010

Dave: I | 13 | A | 01/01/1980

Emma: I | 11 | A | 01/01/2014

Carl: I | 10 | A | 01/01/2000

Al: I | 9 | A | 01/01/1988

The following illustrates how

veterans’ preference and length of

service will be used under the proposed

rules. Assuming the same group of

employees but with two differences: Al

and Carl have the same ratings of

record, but Carl’s veterans’ preference

subgroup is AD, as follows:

Name Tenure

group

Rating of

record

summary

levels

Vets pref

subgroup Service

comp date

Al ...................................................................................................................... I 3/3/3 A 01/01/1988

Barb ................................................................................................................. I 5/4/5 A 01/01/2010

Carl .................................................................................................................. I 3/3/3 AD 01/01/2000

Dave ................................................................................................................. I 4/5/4 A 01/01/1980

Emma ............................................................................................................... I 3/4/4 A 01/01/2014

Under the proposed rules, the

retention register for these employees

would look like this, based on

considering retention factors in this

order (in this example Carl is listed

ahead of Al because he is in veterans’

preference subgroup AD despite having

less service credit than Al):

Barb: I | 14 | A | 01/01/2010

Dave: I | 13 | A | 01/01/1980

Emma: I | 11 | A | 01/01/2014

Carl: I | 9 | AD | 01/01/2000

Al: I | 9 | A | 01/01/1988

OPM is proposing to revamp 5 CFR

part 351, sections 501 through 505. We

are proposing to renumber current

§ 351.505 Records, and §351.506

Effective date of retention standing, to

§ 351.506 Records and §351.507

Effective date of retention standing,

respectively. We are also proposing

corresponding changes to § 351.701

Assignment rights (bump and retreat).

Lastly, OPM is proposing to modify

§ 430.208(d) to attune those provisions

with the proposed changes in 5 CFR

part 351. The proposed changes are as

follows:

Proposed § 351.501 Order of retention

establishes that competing employees in

a RIF will be classified on a retention

register on the basis of (in descending

order): (1) Tenure of employment, (2)

performance, (3) veterans’ preference,

and (4) length of service. This section

also clarifies that the order of retention

provisions applies to employees in both

the competitive and excepted services.

Proposed § 351.502 Tenure of

employment defines tenure groups for

competitive service and excepted

service employees. Proposed

§ 351.502(a) defines tenure groups for

competitive service employees. The new

§ 351.502(a) incorporates the provisions

currently found in § 351.501(b)(1)–(3)

but clarifies that Tenure group I will

consist of career employees who are not

serving a probationary period. Proposed

tenure group II will consist of career-

conditional employees and other

employees serving a probationary

period, as well as the other categories of

employees currently described in

§ 351.501(b)(2). OPM is deleting the

reference to ‘‘temporary appointments

pending establishment of a register’’

listed in current Tenure group III at

§ 351.501(b)(3) because these types of

appointments, also known as TAPER

appointments, were abolished in 2003

(see 68 FR 35265, ‘‘Organization of the

Government for Personnel Management,

Overseas Employment, Temporary and

Term Employment, Recruitment and

Selection for Temporary and Term

Appointments Outside the Register,

Examining System, and Training’’).

Proposed § 351.502(b) defines tenure

groups for excepted service employees.

The new § 351.502(b) incorporates the

provisions currently found in § 351.502

Order of retention—excepted service

without change. OPM is proposing to

consolidate tenure of employment

definitions for both services into one

section for the convenience of the

reader.

Proposed § 351.503 Performance

establishes that an agency will list

employees on a RIF retention register

(within the same tenure group) based on

the total of each employee’s summary

level ratings for the employee’s three

most recent ratings of record for

performance. In accordance with 5 CFR

430.208(d) summary level ratings of

record for these purposes are as follows:

(i) 5 for a Level 5 (Outstanding or

equivalent) summary level

(ii) 4 for a Level 4 (Exceeds Fully

Successful or equivalent) summary

level

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(iii) 3 for a Level 3 (Fully Successful or

equivalent) summary level

(iv) 2 for a Level 2 (Minimally

Successful or equivalent) summary

level, and

(v) 1 for a Level 1 (Unacceptable)

summary level

This section also explains that an

agency lists competing employees on

the retention register in descending

order (i.e., highest to lowest) based on

their totals within the same tenure

group.

Section 351.503(b) Ratings used

explains that an employee’s ratings of

record are to be used in a manner

consistent with the provisions of

subpart B of 5 CFR part 430, and

provides guidance as to how an agency

determines an employee’s performance

standing for RIF purposes for employees

not covered under subpart B of 5 CFR

part 430 and in other special

circumstances. § 351.503(b) remains

largely unchanged from the provisions

currently in § 351.504(a)(1)–(3), though

we are removing the reference to

‘additional retention service credit’

currently found in § 351.504(a)(1).

Section 351.503(c) Consideration of

performance includes language

currently in § 351.504(b) but modifies

this language by removing the reference

to ‘‘additional retention service credit’’

consistent with the aim of E.O. 13839

(i.e., credit for performance will no

longer be added to an employee’s length

of service). Performance will now be a

subgroup, within the tenure group,

which will be based on the total of each

employee’s summary level ratings for

the employee’s three most recent ratings

of record for performance consistent

with § 351.503(a). Proposed

§ 351.503(c)(1) removes the reference to

‘awarding additional retention service

credit’ currently found in

§ 351.504(b)(4).

Section 351.503(d) How to apply

performance ratings is a new subsection

which explains to agencies that they

must total the summary levels from an

employee’s three most recent ratings of

record to derive a total summary level

value for purposes of placing the

employee on a RIF retention register

under this part. This new subsection

uses the rating of record summary levels

described in subpart B of 5 CFR part

430. For example, the employees below

are covered under a pattern H five-

summary level rating performance

appraisal system as described in 5 CFR

430.208(d). Their ratings and totals are:

Employee Ratings Total

Alice .............................. 5/4/4 13

Bill ................................. 4/3/3 10

Employee Ratings Total

Carol ............................. 4/4/3 11

Fred .............................. 3/4/5 12

These employees would be listed on

the retention register in the following

order: Alice, Fred, Carol, then Bill.

New paragraph § 351.503(e) Single

rating pattern describes how agencies

list employees who have been covered

under the same rating pattern of

summary levels during the 4-year period

prior to the date of issuance of the

reduction in force notice or the agency-

established cutoff date. Subparagraph

(e)(ii) proposes that for employees

covered under a summary level

appraisal system in which the highest

summary level is a level ‘‘3’’ rating (i.e.,

a pattern A (‘pass/fail’), or pattern D

system) the agency may create a

performance subgroup for employees

who have documented exceptional

performance above the norm. This

subparagraph explains that evidence of

exceptional performance may include

documentation showing an agency: Has

awarded an employee the highest

Agency or Departmental award (such as

a Secretary’s or Chairman’s award), a

special act or service award, a quality

step increase, or other performance

awards or bonus (e.g., a ‘time-off’ for

demonstrated performance above

expectations). OPM is proposing this to

effectuate the principle of the E.O.

(which is to elevate performance over

length of service) and to provide a

method by which an agency may make

meaningful distinctions among

employees in a pattern A or D

performance appraisal program (i.e., the

highest summary level rating is a ‘‘3’’ or

satisfactory) who have documented

performance above expectations in these

appraisals systems.

In new subparagraph

§ 351.503(e)(2)(B) OPM is also

proposing to allow an agency to give

more weight to certain performance-

related actions than others for purposes

of listing some level ‘‘3’’ employees

ahead of other employees on a retention

register. For example, an agency could

list all employees who received the

agency’s highest sustained performance

award ahead of all employees who

received an organizational or

component-specific award, and ahead

employee who received a time off award

(both groups would be listed ahead of

the other level ‘‘3’’ employees). An

agency that chooses this option must

specify and document, in advance of

any RIF, how it will prioritize

performance awards for these purposes.

OPM believes this option is consistent

with the E.O. and the principle of

elevating performance over length of

service, and it provides an agency with

a method for making meaningful

distinctions among employees with a

fully successful rating when some of

these employees were recognized for

exceptional performance.

Section 351.503(f) Multiple rating

patterns addresses situations in which

an agency has employees in a

competitive area who have ratings of

record under more than one pattern of

summary levels, as described in 5 CFR

403.208(d). This paragraph explains that

an agency shall consider the mix of

patterns and proposes that an agency

shall provide enhanced performance

standing to employees under disparate

pattern summary levels under certain

circumstances. To do this OPM is

proposing that an agency transmute or

assign an employee a higher summary

level rating than what he or she received

under a previous rating system only

when there is documented evidence of

exceptional or higher level performance

consistent with the criteria in proposed

§ 351.503(e). An agency must transmute

the rating of an employee who meets

this requirement to the highest summary

level of the pattern summary level being

used during the RIF (i.e., a level ‘‘4’’

rating if the agency conducting the RIF

uses a pattern C or G summary level

appraisal system, or a level ‘‘5’’ rating if

the agency uses a pattern B, E, F, or H

summary level appraisal system).

Documented evidence of exceptional or

higher level performance for these

purposes includes: Award or receipt of

the highest Agency or Departmental

award (such as a Secretary’s or

Chairman’s award), a quality step

increase, or an annual performance

appraisal bonus. For example, an

employee was covered by a pattern A

(pass/fail) appraisal program for two

years and a pattern H (5 summary level)

appraisal program for the one year prior

to a RIF. While covered under the

pattern A appraisal program the

employee received his agency’s highest

award for excellent performance in the

second year. Under the five-summary

level system he received a level ‘‘4’’

rating. Under this proposal the agency

must assign the employee a higher

rating level; so in this instance the

employee’s performance ratings for the

three year period would be 3/5/4 (his

level 3 rating would be transmuted to a

level 5) and his ratings of record total

for the three year period would be 12 for

purposes of 351.503(d). OPM is also

proposing that an employee who goes

from an appraisal system which uses a

higher pattern of summary levels to a

lower one (e.g., an employee who goes

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from a 5 summary level appraisal

program to two level system (i.e., pass/

fail system)) with ratings above the

highest summary level of the lower

pattern system be listed ahead of any

employee on the retention register who

does not have documented evidence of

exceptional performance as described

above. Lastly, this proposed section

requires an agency to specify the basis

on which it will consider exceptional or

higher level performance described in

§ 351.503(e) and transmute or assign an

employee a higher rating in accordance

with the pattern of summary level used

during the RIF, and make this

information readily available for review

prior to running a reduction in force.

OPM is proposing enhanced

performance credit or standing to

implement the E.O.’s principle that an

agency emphasize performance over

length of service in a RIF. We believe

this method prevents exceptional

performers from being disadvantaged

because they may be covered under two

or more patterns of summary rating

levels which may not make meaningful

distinctions for performance among

employees.

§ 351.503(g) Missing ratings describes

how an agency should factor

performance ratings into the RIF process

when an employee does not have three

actual ratings of record during the 4-

year period prior to the date of issuance

of RIF notices, or the 4-year period prior

to the agency-established cut-off date.

Proposed § 351.503(g) uses the modal

rating concept for employees with no

ratings during the 4 year period prior to

the RIF currently found in

§ 351.504(c)(1) but modifies the current

provisions by removing the reference to

’’additional retention service credit’’

consistent with the aim of E.O. 13839

(i.e., credit for performance will no

longer be added to an employee’s length

of service). The term ‘modal rating’ is

currently defined in § 351.203. For

employees with at least one rating of

record but less than three, this section

proposes that an agency total the

summary levels, divide by the number

of ratings, and use this value for the

missing ratings. For example, an

employee in five level pattern H

summary level appraisal system has

summary level rating of ‘‘3’’ fully

successful and ‘‘4’’ exceeds fully

successful but is missing a third rating.

The agency would add 3 + 4, then

divide by 2, for a value of 3.5 for the

missing rating. The agency then adds

the three ratings of record: 3, 4, and 3.5

for a total of 10.5 and enters the

employee on the retention register

accordingly.

Proposed § 351.504 Veterans’

preference defines veterans’ preference

subgroups for employees in both the

competitive and excepted services. This

proposed section will consist of the

provisions currently found in

§ 351.501(c) and (d) without change.

OPM is proposing to delete current

§ 351.502 Order of retention—excepted

service and cover these provisions in

proposed § 351.501(a).

OPM is proposing to modify current

§ 351.705 Administrative assignment to

be consistent with the proposed changes

to §§ 351.501–.505. Specifically, OPM is

proposing to update § 351.705(a)(2) to

incorporate the new order of retention

and the creation of the new subgroup

called ‘performance’.

Performance Management

OPM is proposing to modify current

§ 430.208(d)(4) to attune this language

with the proposed changes in part 351.

To do this, we propose removing the

current reference to ‘‘. . . assigning

additional retention service credit under

§ 351.504.’’

OPM is proposing to modify current

§ 430.208(d)(5) by removing the

reference to ‘‘the number of years of

additional retention service credit’’ and

replacing it with a general reference to

proposed § 351.503 Performance.

Regulatory Impact Analysis

OPM has examined the impact of this

rulemaking as required by Executive

Order 12866 and Executive Order

13563, which directs agencies to assess

all costs and benefits of available

regulatory alternatives and, if regulation

is necessary, to select regulatory

approaches that maximize net benefits

(including potential economic,

environmental, public, health, and

safety effects, distributive impacts, and

equity). A regulatory impact analysis

must be prepared for major rules with

economically significant effects of $100

million or more in any one year. While

this proposed rule does not reach the

economic effect of $100 million or more

under Executive Order 12866, this

proposed rule is still designated as a

‘‘significant regulatory action,’’ under

Executive Order 12866.

Reducing Regulation and Controlling

Regulatory Costs

This proposed rule is not an E.O.

13771 regulatory action because this

proposed rule is expected to be no more

than de minimis costs.

Regulatory Flexibility Act

The Office of Personnel Management

certifies that this proposed rule will not

have a significant economic impact on

a substantial number of small entities.

Federalism

We have examined this proposed rule

in accordance with Executive Order

13132, Federalism, and have

determined that this proposed rule will

not have any negative impact on the

rights, roles and responsibilities of

State, local, or tribal governments.

Civil Justice Reform

This regulation meets the applicable

standard set forth in Executive Order

12988.

Unfunded Mandates Reform Act of

1995

This proposed rule will not result in

the expenditure by state, local, and

tribal governments, in the aggregate, or

by the private sector, of $100 million or

more in any year and it will not

significantly or uniquely affect small

governments. Therefore, no actions were

deemed necessary under the provisions

of the Unfunded Mandates Reform Act

of 1995.

Congressional Review Act

The Congressional Review Act (5

U.S.C. 801 et seq.) requires rules to be

submitted to Congress before taking

effect. OPM will submit to Congress and

the Comptroller General of the United

States a report regarding the issuance of

this proposed rule before its effective

date, as required by 5 U.S.C. 801. This

proposed rule is not a major rule as

defined by the Congressional Review

Act (CRA) (5 U.S.C. 804).

Paperwork Reduction Act of 1995 (44

U.S.C. Chapter 35)

This regulatory action will not impose

any additional reporting or

recordkeeping requirements under the

Paperwork Reduction Act.

List of Subjects in 5 CFR Parts 351 and

430

Government employees.

Office of Personnel Management.

Alexys Stanley,

Regulatory Affairs Analyst.

Accordingly, for the reasons stated in

the preamble, OPM proposes to amend

5 CFR parts 351, and 430 as follows:

PART 351—REDUCTION IN FORCE

■1. Revise the authority citation for part

351 to read as follows:

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

351.801 also issued under E.O. 12828, 58 FR

2965; E.O. 13839, 83 FR 25343.

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Subpart B—General Provisions

■2. In § 351.203, revise the definition of

‘‘Current rating of record’’ to read as

follows:

§ 351.203 Definitions.

* * * * *

Current rating of record is the rating

of record for the most recently

completed appraisal period as provided

in § 351.503(c)(3).

* * * * *

Subpart E—Retention Standing

■3. Revise Subpart E to read as follows:

Subpart E—Retention Standing

Sec.

351.501 Order of retention.

351.502 Tenure of employment.

351.503 Performance.

351.504 Veterans’ preference.

351.505 Length of service.

351.506 Records.

351.507 Effective date of retention standing.

§ 351.501 Order of retention.

Competing employees in the

competitive and excepted services shall

be classified on a retention register on

the basis of four factors: Tenure of

employment, performance, veterans’

preference, and length of service as

follows:

(a) On the same retention register in

descending order by tenure group I,

group II, group III, as described in

§ 351.502;

(b) Within each tenure group by

performance based on the sum of the

summary levels for the employee’s three

most recent ratings of record for

performance in accordance with

§ 351.503;

(c) Within each performance subgroup

by veterans’ preference subgroup AD,

subgroup A, subgroup B, as described in

§ 351.504; and

(d) Within each veterans’ preference

subgroup by years of service beginning

with the earliest service computation

date, as computed under § 351.505,

when two or more employees have the

same summary level total value for the

employees’ three most recent ratings of

record.

§ 351.502 Tenure of employment.

(a) Competitive service. Tenure groups

in the competitive service are defined as

follows:

(1) Group I includes each career

employee who is not serving a

probationary period. (A supervisory or

managerial employee serving a

probationary period required by subpart

I of part 315 of this chapter is in group

I if the employee is otherwise eligible to

be included in this group.) The

following employees are in group I as

soon as the employee completes any

required probationary period for initial

appointment:

(i) An employee for whom substantial

evidence exists of eligibility to

immediately acquire status and career

tenure, and whose case is pending final

resolution by OPM (including cases

under Executive Order 10826 to correct

certain administrative errors);

(ii) An employee who acquires

competitive status and satisfies the

service requirement for career tenure

when the employee’s position is brought

into the competitive service;

(iii) An administrative law judge;

(iv) An employee appointed under 5

U.S.C. 3104, which provides for the

employment of specially-qualified

scientific or professional personnel, or a

similar authority; and

(v) An employee who acquired status

under 5 U.S.C. 3304(c) on transfer to the

competitive service from the legislative

or judicial branches of the Federal

Government.

(2) Group II includes each career-

conditional employee, and each

employee serving a probationary period

under subpart H of part 315 of this

chapter. (A supervisory or managerial

employee serving a probationary period

required by subpart I of part 315 of this

chapter is in group II if the employee

has not completed a probationary period

under subpart H of part 315 of this

chapter.) Group II also includes an

employee when substantial evidence

exists of the employee’s eligibility to

immediately acquire status and career-

conditional tenure, and the employee’s

case is pending final resolution by OPM

(including cases under Executive Order

10826 to correct certain administrative

errors).

(3) Group III includes all employees

serving under indefinite appointments,

status quo appointments, term

appointments, and any other non-status

non-temporary appointments which

meet the definition of provisional

appointments contained in §§ 316.401

and 316.403 of this chapter.

(b) Excepted service. Tenure groups in

the excepted service are defined as

follows:

(1) Group I includes each permanent

employee whose appointment carries no

restriction or condition such as

conditional, indefinite, specific time

limit, or trial period.

(2) Group II includes each employee:

(i) Serving a trial period; or

(ii) Whose tenure is equivalent to a

career-conditional appointment in the

competitive service in agencies having

such excepted appointments.

(3) Group III includes each employee:

(i) Whose tenure is indefinite (i.e.,

without specific time limit), but not

actually or potentially permanent;

(ii) Whose appointment has a specific

time limitation of more than 1 year; or

(iii) Who is currently employed under

a temporary appointment limited to 1

year or less, but who has completed 1

year of current continuous service under

a temporary appointment with no break

in service of 1 workday or more.

§ 351.503 Performance.

(a) Performance subgroup. Within the

tenure groups an agency shall list

competing employees in descending

order (i.e., highest to lowest) based on

the total of the summary levels for each

employee’s three most recent ratings of

record for performance in accordance

with part 430 of this Chapter.

(b) Ratings used. (1) Except as

provided at § 351.503(d)(3), only ratings

of record as defined in § 351.203 shall

be used as the basis for classifying an

employee’s performance in a reduction

in force.

(2) For employees who received

ratings of record while covered by part

430, subpart B, of this chapter, the

summary levels assigned for those

ratings of record shall be used to

establish the employee’s performance

subgroup in a reduction in force in

accordance with 5 CFR 351.501, except

as provided in 5 CFR 351.503(d)(3).

(3) For employees who received

performance ratings while not covered

by the provisions of 5 U.S.C. chapter 43

and subpart B of part 430 of this

chapter, those performance ratings shall

be considered ratings of record with

summary levels for designating an

employee’s performance subgroup in a

reduction in force only when it is

determined that those performance

ratings are equivalent ratings of record

under the provisions of § 430.201(c) of

this chapter. The agency conducting the

reduction in force shall make that

determination.

(c) Consideration of performance. (1)

An employee’s entitlement to

performance consideration under this

subpart shall be based on the

employee’s three most recent ratings of

record received during the 4-year period

prior to the date of issuance of reduction

in force notices, except as otherwise

provided in paragraphs (c)(2) and (g) of

this section.

(2) To provide adequate time to

determine employee performance total

values, an agency may provide for a

cutoff date, a specified number of days

prior to the issuance of reduction in

force notices after which no new ratings

of record will be put on record and used

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Federal Register / Vol. 85, No. 243 / Thursday, December 17, 2020 / Proposed Rules

for purposes of this subpart. When a

cutoff date is used, an employee’s

performance average will be based on

the three most recent ratings of record

received during the 4-year period prior

to the cutoff date.

(3) To be considered for purposes of

this subpart, a rating of record and its

assigned summary level (including any

adjustments to performance consistent

with this subpart) must have been

issued to the employee, with all

appropriate reviews and signatures, and

must also be on record (i.e., the rating

of record is available for use by the

office responsible for establishing

retention registers).

(4) The use of performance ratings of

record and assigned summary levels

(including any adjustments to

performance) for purposes of this

subpart must be uniformly and

consistently applied within a

competitive area, and must be

consistent with any agency’s

appropriate issuance(s) that implement

these policies in part 351. Each agency

must specify in its appropriate

issuance(s):

(i) The conditions under which a

rating of record is considered to have

been received for purposes of

determining whether it is within the 4-

year period prior to either the date the

agency issues reduction in force notices

or the agency-established cutoff date for

ratings of record, as appropriate; and

(ii) If the agency elects to use a cutoff

date, the number of days prior to the

issuance of reduction in force notices

after which no new ratings of record

will be put on record and used for

purposes of this subpart.

(d) How to apply performance ratings

of record. Agencies determine each

competing employee’s performance

standing (or numerical value) by adding

the employee’s three most recent

summary level ratings of record during

the 4-year period prior to the date of

issuance of the reduction in force notice

or the agency-established cutoff date.

An agency lists competing employees

on the retention register in descending

order (i.e., highest to lowest) based on

these totals.

(e) Single rating pattern. (1) If all

employees in a reduction in force

competitive area have received ratings

of record under a single pattern of

summary levels as set forth in

§ 430.208(d) of this chapter, agencies

must apply the method described in

paragraph (d) of this section.

(2) An agency may give additional

credit for performance for employees

covered under a summary level

appraisal system in which the highest

summary level is a level ‘‘3’’ rating (i.e.,

a pattern A ‘pass/fail’, or pattern D

system), consistent with § 430.208(d) of

this chapter. At its discretion an agency

may create a subgroup of level ‘‘3’’

employees with demonstrated

exceptional performance and list them

ahead of other level ’’3’’ employees if,

within the 4-year period prior to either

the date the agency issues reduction in

force notices or the agency-established

cutoff date for ratings of record, the

following condition is met:

(i) The agency has applied

performance-related criteria and taken

an action that recognizes the employee’s

exceptional performance; such actions

may include but are not limited to

awarding an employee: The highest

Agency or Departmental award (such as

a Secretary’s or Chairman’s award), a

special act or service award, a quality

step increase, or other performance

awards or bonus (e.g., a ’time-off’ for

demonstrated performance above

expectations), etc.

(ii) An agency may determine on its

own whether to give more weight to the

performance-related action described in

paragraph (e)(2)(i) of this section for

purposes of listing some level ‘‘3’’

employees ahead of other on a retention

register. For example, an agency could

list all employees who received the

agency’s highest sustained performance

award ahead of all employees who

received an organizational or

component-specific award, and ahead of

an employee who received a time off

award. An agency which chooses this

option must specify and document, in

advance of the RIF, how it will

prioritize performance awards for these

purposes.

(iii) An agency that chooses to give an

employee additional credit for

performance must specify and

document, in advance of the RIF, how

it will prioritize performance awards for

these purposes and make this criterion

readily available for review.

(f) Multiple rating patterns. (1) If an

agency has employees in a competitive

area who have ratings of record under

more than one pattern of summary

levels, as set forth in § 430.208(d) of this

chapter, it shall consider the mix of

patterns and provide additional

retention credit for performance in

accordance with the following:

(i) Transmute or assign an employee

a higher summary level rating than what

he or she received under their previous

appraisal system in accordance with the

appraisal system (i.e., pattern of

summary level) being applied to the

Reduction in Force;

(ii) Transmute or assign an employee

a summary level rating only when there

is documented evidence of exceptional

or higher level performance as

evidenced by an employee who received

the highest Agency or Departmental

award (such as a Secretary’s or

Chairman’s award), a quality step

increase, or appraisal performance

awards or bonus (e.g., a ‘‘time-off’’ for

demonstrated performance above

expectations in lieu of a cash bonus);

and

(iii) Each agency must specify and

document, in advance of a RIF, the basis

on which it will transmute an

employee’s rating; i.e., the agency needs

to describe how it will translate

evidence of documented exceptional

performance to a higher performance

rating under the appraisal system (i.e.,

pattern of summary level) being applied

to the RIF and make this criteria readily

available for review.

(iii) An agency must transmute the

rating of an employee who meets the

requirement in 351.503(f)(1)(B) to the

highest summary level of the pattern

summary level being applied to the RIF

(i.e., a level ‘‘4’’ rating if the agency

conducting the RIF uses a pattern C or

G summary level appraisal system, or a

level ‘‘5’’ rating if the agency uses a

pattern B, E, F, or H summary level

appraisal system). An agency cannot

transmute a rating to a summary level

which is not among those in the pattern

being applied to the RIF.

(ii) In situations in which the agency

running the RIF is using a pattern

summary level rating appraisal system

with a summary level no higher than a

level ‘‘3’’ (i.e., a pass/fail system) but

has employees rated previously under a

pattern with higher summary levels the

agency must place the employees with

the higher summary ratings at the

performance subgroup at the top of

retention register, or ahead of, other

summary level ‘‘3’’ employees with no

documented evidence of exceptional

performance.

(g) Missing ratings. (1) Use of

performance ratings for employees who

do not have three actual ratings of

record during the 4-year period prior to

the date of issuance of reduction in

force notices or the 4-year period prior

to the agency-established cutoff date for

ratings of record permitted in paragraph

(c)(2) of this section shall be determined

under paragraph (d) of this section, as

appropriate, and as follows:

(2) The performance standing of an

employee who has not received any

rating of record for any year during the

4-year period shall be based on the

modal rating as defined in 5 CFR

351.203 for the summary level pattern

that applies to the employee’s official

position of record at the time of the

reduction in force.

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Federal Register / Vol. 85, No. 243 / Thursday, December 17, 2020 / Proposed Rules

(3) The performance standing of an

employee who has received at least one

but fewer than three previous ratings of

record during the 4-year period shall

have his or her performance standing

determined on the basis of the value of

summary levels for the actual rating(s)

of record divided by the number of

actual ratings received. If an employee

has received only two actual ratings of

record during the period, the value of

the summary levels is added together

and divided by 2, with the result being

either (1) a whole number or (2) a

number with .5 decimal value. The

agency totals these values and lists the

employee in score order in accordance

with § 351.204(d). If an employee has

received only one actual rating of record

during the period, its summary level

value determines the employee’s

performance subgroup for purposes of

this part.

§ 351.504 Veterans’ preference.

(a) Veterans’ preference subgroups.

Veterans’ preference subgroups for both

competitive and excepted service

employees are defined as follows:

(1) Subgroup AD includes each

preference eligible employee who has a

compensable service-connected

disability of 30 percent or more.

(2) Subgroup A includes each

preference eligible employee not

included in subgroup AD.

(3) Subgroup B includes each

nonpreference eligible employee.

(b) A retired member of a uniformed

service is considered a preference

eligible under this part only if the

member meets at least one of the

conditions of the following paragraphs

(b)(1), (2), or (3) of this section, except

as limited by paragraph (b)(4) or (b)(5):

(1) The employee’s military

retirement is based on disability that

either:

(i) Resulted from injury or disease

received in the line of duty as a direct

result of armed conflict; or

(ii) Was caused by an instrumentality

of war incurred in the line of duty

during a period of war as defined by

sections 101 and 301 of title 38, United

States Code.

(2) The employee’s retired pay from a

uniformed service is not based upon 20

or more years of full-time active service,

regardless of when performed but not

including periods of active duty for

training.

(3) The employee has been

continuously employed in a position

covered by this part since November 30,

1964, without a break in service of more

than 30 days.

(4) An employee retired at the rank of

major or above (or equivalent) is

considered a preference eligible under

this part if such employee is a disabled

veteran as defined in section 2108(2) of

title 5, United States Code, and meets

one of the conditions covered in

paragraphs (b)(1), (2), or (3) of this

section.

(5) An employee who is eligible for

retired pay under chapter 67 of title 10,

United States Code, and who retired at

the rank of major or above (or

equivalent) is considered a preference

eligible under this part at age 60, only

if such employee is a disabled veteran

as defined in section 2108(2) of title 5,

United States Code.

§ 351.505 Length of service.

(a) All civilian service as a Federal

employee, as defined in 5 U.S.C.

2105(a), is creditable for purposes of

this part. Civilian service performed in

employment that does not meet the

definition of Federal employee set forth

in 5 U.S.C. 2105(a) is creditable for

purposes of this part only if specifically

authorized by statute as creditable for

retention purposes.

(b)(1) As authorized by 5 U.S.C.

3502(a)(A), all active duty in a

uniformed service, as defined in 5

U.S.C. 2101(3), is creditable for

purposes of this part, except as provided

in paragraphs (b)(2) and (b)(3) of this

section.

(2) As authorized by 5 U.S.C.

3502(a)(B), a retired member of a

uniformed service who is covered by

§ 351.503(b) is entitled to credit under

this part only for:

(i) The length of time in active service

in the Armed Forces during a war, or in

a campaign or expedition for which a

campaign or expedition badge has been

authorized; or

(ii) The total length of time in active

service in the Armed Forces if the

employee is considered a preference

eligible under 5 U.S.C. 2108 and 5

U.S.C. 3501(a), as implemented in

§ 351.504(b).

(3) An employee may not receive dual

service credit for purposes of this part

for service performed on active duty in

the Armed Forces that was performed

during concurrent civilian employment

as a Federal employee, as defined in 5

U.S.C. 2105(a).

(c)(1) The agency is responsible for

establishing the service computation

date applicable to each employee

competing for retention under this part.

If applicable, the agency is also

responsible for adjusting the service

computation date to withhold retention

service credit for non-creditable service.

(2) The service computation date

includes all actual creditable service

under paragraph (a) and paragraph (b) of

this section.

(d) Service computation date. The

service computation date is computed

on the following basis:

(1) The effective date of appointment

as a Federal employee under 5 U.S.C.

2105(a) when the employee has no

previous creditable service under

paragraph (a) or (b) of this section; or if

applicable,

(2) The date calculated by subtracting

the employee’s total previous creditable

service under paragraph (a) or (b) of this

section from the most recent effective

date of appointment as a Federal

employee under 5 U.S.C. 2105(a).

§ 351.506 Records.

(a) The agency is responsible for

maintaining correct personnel records

that are used to determine the retention

standing of its employees competing for

retention under this part.

(b) The agency must allow its

retention registers and related records to

be inspected by:

(1) An employee of the agency who

has received a specific reduction in

force notice, and/or the employee’s

representative if the representative is

acting on behalf of the individual

employee; and

(2) An authorized representative of

OPM.

(c) An employee who has received a

specific notice of reduction in force

under authority of subpart H of this part

has the right to review any completed

records used by the agency in a

reduction in force action that was taken,

or will be taken, against the employee,

including:

(1) The complete retention register

with the released employee’s name and

other relevant retention information

(including the names of all other

employees listed on that register, and

their individual service computation

dates calculated under § 351.505(d)), so

that the employee may consider how the

agency constructed the competitive

level, and how the agency determined

the relative retention standing of the

competing employees; and

(2) The complete retention registers

for other positions that could affect the

composition of the employee’s

competitive level, and/or the

determination of the employee’s

assignment rights (e.g., registers to

which the released employee may have

potential assignment rights under

§ 351.701(b) and (c)).

(d) An employee who has not

received a specific reduction in force

notice has no right to review the

agency’s retention registers and related

records.

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1

‘‘Fitness for Duty Programs; Final Rule,’’ 73 FR

16966 (March 31, 2008).

(e) The agency is responsible for

ensuring that each employee’s access to

retention records is consistent with both

the Freedom of Information Act (5

U.S.C. 552), and the Privacy Act (5

U.S.C. 552a).

(f) The agency must preserve all

registers and records relating to a

reduction in force for at least 1 year after

the date it issues a specific reduction in

force notice.

§ 351.507 Effective date of retention

standing.

(a) The retention standing of each

employee released from a competitive

level in the order prescribed in

§ 351.601 is determined as of the date

the employee is so released.

(b) The retention standing of each

employee retained in a competitive

level as an exception under

§ 351.606(b), §351.607, or § 351.608, is

determined as of the date the employee

would have been released had the

exception not been used. The retention

standing of each employee retained

under any of these provisions remains

fixed until completion of the reduction

in force action which resulted in the

temporary retention.

(c) When an agency discovers an error

in the determination of an employee’s

retention standing, it shall correct the

error and adjust any erroneous

reduction-in-force action to accord with

the employee’s proper retention

standing as of the effective date

established by this section.

■5. Revise § 351.705(a)(2) to read as

follows:

§ 351.705 Administrative assignment.

(a) * * *

(2) Permit an employee in tenure

group III, same performance subgroup,

veterans’ preference subgroup AD to

displace an employee in tenure group

III, same performance subgroup,

veterans’ preference subgroup A or B, or

permit an employee in tenure group III,

same performance subgroup, veterans’

preference subgroup A to displace an

employee in tenure group III, same

performance subgroup, veterans’

preference subgroup B consistent with

§ 351.701 (e.g., an employee in tenure

group III, performance summary level

ratings of record total of 12, veterans’

preference subgroup AD to displace an

employee tenure group III, performance

summary level ratings of record total of

12, veterans’ preference subgroup A or

B).

* * * * *

PART 430—PERFORMANCE

MANAGEMENT

Subpart B—Performance Appraisal for

General Schedule, Prevailing Rate, and

Certain Other Employees

■6.Revise § 430.208(d)(4) to read as

follows:

§ 430.208 Rating Performance.

* * * * *

(d) * * *

(4) The designation of a summary

level and its pattern shall be used to

provide consistency in describing

ratings of record and as a reference

point for applying other related

regulations, excluding enhanced

performance values under § 351.503(d)

and (f) of this chapter.

§ 430.208 [Amended]

■7. In § 430.208, remove paragraph

(d)(5).

[FR Doc. 2020–26347 Filed 12–16–20; 8:45 am]

BILLING CODE 6325–39–P

NUCLEAR REGULATORY

COMMISSION

10 CFR Part 26

[Docket Nos. PRM–26–3; NRC–2009–0482,

PRM–26–5; NRC–2010–0304]

Fitness-for-Duty Program

AGENCY

: Nuclear Regulatory

Commission.

ACTION

: Petitions for rulemaking; denial.

SUMMARY

: The U.S. Nuclear Regulatory

Commission (NRC) is denying two

petitions for rulemaking related to the

fitness-for-duty program that were

docketed as PRM–26–3, ‘‘Professional

Reactor Operator Society—Fitness-for-

Duty Programs,’’ and PRM–26–5,

‘‘Nuclear Energy Institute—Fitness-for-

Duty Programs,’’ due to the

discontinuation of the associated

rulemaking.

DATES

: As of December 17, 2020, the

dockets for PRM–26–3 and PRM–26–5

are closed.

ADDRESSES

: Please refer to Docket IDs

NRC–2009–0482 or NRC–2010–0304

when contacting the NRC about the

availability of information regarding this

document. You may obtain publicly-

available information related to this

document using any of the following

methods:

•Federal Rulemaking Website: Go to

https://www.regulations.gov and search

for Docket IDs NRC–2009–0482 or NRC–

2010–0304. Address questions about

NRC dockets to Dawn Forder;

telephone: 301–415–3407; email:

Dawn.Forder@nrc.gov. For technical

questions, contact the individuals listed

in the

FOR FURTHER INFORMATION

CONTACT

section of this document.

•NRC’s Agencywide Documents

Access and Management System

(ADAMS): You may obtain publicly-

available documents online in the

ADAMS Public Documents collection at

https://www.nrc.gov/reading-rm/

adams.html. To begin the search, select

‘‘Begin Web-based ADAMS Search.’’ For

problems with ADAMS, please contact

the NRC’s Public Document Room (PDR)

reference staff at 1–800–397–4209, 301–

415–4737, or by email to pdr.resource@

nrc.gov. The ADAMS accession number

for each document referenced (if it is

available in ADAMS) is provided the

first time that it is mentioned in the

SUPPLEMENTARY INFORMATION

section.

•Attention: The PDR, where you may

examine and order copies of public

documents, is currently closed. You

may submit your request to the PDR via

email at PDR.Resource@nrc.gov or call

1–800–397–4209 between 8:00 a.m. and

4:00 p.m. (EST), Monday through

Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT

:

Yanely Malave, Office of Nuclear

Material Safety and Safeguards, U.S.

Nuclear Regulatory Commission,

Washington, DC 20555–0001; telephone:

301–415–1519, email: Yanely.Malave-

Velez@nrc.gov.

SUPPLEMENTARY INFORMATION

:

I. Background

Title 10 of the Code of Federal

Regulations (10 CFR) 2.802, ‘‘Petition

for rulemaking—requirements for

filing,’’ provides an opportunity for any

interested person to petition the

Commission to issue, amend, or rescind

any regulation in 10 CFR chapter I. The

NRC received the following petitions for

rulemaking (PRMs) regarding 10 CFR

part 26, ‘‘Fitness for Duty Programs,’’

subpart I, ‘‘Managing Fatigue,’’ from the

Professional Reactor Operator Society

(PROS) and the Nuclear Energy Institute

(NEI) after the NRC issued a final rule

1

in 2008 that substantially revised its

fitness for duty requirements:

(1) PRM–26–3 Submitted by Robert N.

Meyer on Behalf of PROS

On October 16, 2009, Mr. Robert N.

Meyer, on behalf of PROS, an

organization of operations personnel

employed at nuclear power plants

throughout the United States, submitted

a PRM requesting that the NRC amend

its fatigue management regulations to

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