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| Subpart D | Scope of Competition | 351.401 – 351.405 | |||||||||||||||
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5 U.S.C. 1103, 1104, 1302, 2301, 3502, 3503, 38 U.S.C. 4331; E.O. 14284, 90 FR 17729; 5 CFR 2.2(c). Sec. 351.801 also issued under E.O. 12828, 58 FR 2965, 3 CFR, 1993 Comp., p. 569.
51 FR 319, Jan. 3, 1986, unless otherwise noted.
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Each agency shall determine the retention standing of each competing employee on the basis of the factors in this subpart and in subpart E of this part.
(a) Each agency shall establish competitive areas in which employees compete for retention under this part.
(b)
(1) Except as authorized in paragraph (b)(2) of this section, a competitive area must be defined in terms of the agency's organizational unit(s) 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 any organizational unit or combination of units established on the agency's official organizational chart. Organizational charts must be available on the agency's public facing web page or otherwise appropriately documented by the agency. An organizational unit for these purposes must be designated/approved by the head of the agency, or designee, and the designation or approval cannot be delegated to an official below the agency's headquarters level. In addition, an organizational unit for these purposes must be clearly distinguished from other organizational units with regard to its operation, work function, staff, and supervisory oversight.
(2) An agency may define a geographic location (e.g., a national park or county) as a separate competitive area.
(3) Notwithstanding paragraph (b)(2) of this section, for the purposes of defining a competitive area, an agency must assign employees working at an approved alternate location to the organizational unit to which they are officially assigned.
(c) If an agency establishes or materially modifies a competitive area within 90 days before issuing specific reduction in force notices for that competitive area, the agency shall submit a description of the competitive area, along with a written statement explaining the bona fide organizational basis for the competitive area, to OPM for approval in advance of the reduction in force. Descriptions of all competitive areas, and accompanying explanations submitted to OPM, must be made readily available for review consistent with national security considerations and applicable laws including the Freedom of Information Act (5 U.S.C. 552), and the Privacy Act (5 U.S.C. 552a).
(d) Each agency shall establish a separate competitive area for each Inspector General activity established under authority of the Inspector General Act of 1978, Public Law 95-452, as amended, in which only employees of that office shall compete for retention under this part.
(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).
[51 FR 319 Jan. 3, 1986, as amended at 56 FR 65416, Dec. 17, 1991; 62 FR 62500, Nov. 24, 1997; 73 FR 46532, Aug. 11, 2008; 91 FR 49219, Aug. 3, 2026; 91 FR 54795, Aug. 25, 2026]
(a)
(1) Each agency shall establish competitive levels consisting of all positions in a competitive area which are in the same grade (or occupational level) and classification series, and which are similar enough in duties, qualification requirements, pay schedules, and working conditions so that an agency may reassign the incumbent of one position to any of the other positions in the level without undue interruption.
(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.
(3) Sex may not be the basis for a competitive level determination, except for a position OPM designates that certification of eligibles by sex is justified.
(4) A probationary period required by subpart I of part 315 of this chapter for initial appointment to a supervisory or managerial position is not a basis for establishing a separate competitive level.
(5) If a competitive area includes positions in one or more pay bands, each set of interchangeable positions in the pay band under paragraphs (a)(1) through (4) of this section is a separate competitive level (e.g., with interchangeable positions under paragraphs (a)(1) through (4) of this section, each pay band is one competitive level; if the positions are not interchangeable under paragraphs (a)(1) through (4) of this section, the pay band may include multiple competitive levels).
(b) Each agency shall establish separate competitive levels according to the following categories:
(1) By service. Separate levels shall be established for positions in the competitive service and in the excepted service.
(2) By appointment authority. Separate levels shall be established for excepted service positions filled under different appointment authorities.
(3) By pay schedule. Separate levels shall be established for positions under different pay schedules.
(4) By work schedule. Separate levels shall be established for positions filled on a full-time, part-time, intermittent, seasonal, or on-call basis. No distinction may be made among employees in the competitive level on the basis of the number of hours or weeks scheduled to be worked.
(5) By trainee status. Separate levels shall be established for positions filled by an employee in a formally designated trainee or developmental program having all of the characteristics covered in § 351.702(e)(1) through (e)(4) of this part.
(c) An agency may not establish a competitive level based solely upon:
(1) A difference in the number of hours or weeks scheduled to be worked by other-than-full-time employees who would otherwise be in the same competitive level;
(2) A requirement to work changing shifts;
(3) The grade promotion potential of the position; or
(4) A difference in the local wage areas when a competitive area includes positions covered by more than one wage-board or similar wage-determining procedure;
(5) A difference in locality payments under 5 U.S.C. 5304 and subpart F of part 531 of this chapter when a competitive level includes more than one locality pay area listed in § 531.603 of this chapter; or
(6) Representative rates in different local commuting areas when a competitive area includes General Schedule (GS) and Federal Wage System (FWS) positions in multiple GS locality pay areas, and/or FWS local wage areas.
[51 FR 319, Jan. 3, 1986, as amended at 60 FR 3062, Jan. 13, 1995; 62 FR 62500, Nov. 24, 1997; 73 FR 29388, May 21, 2008; 73 FR 46532, Aug. 11, 2008]
(a) When a competing employee is to be released from a competitive level under this part, the agency shall establish a separate retention register for that competitive level. The retention register is prepared from the current retention records of employees. Upon displacing another employee under this part, an employee retains the same status and tenure in the new position. Except for an employee on military duty with a restoration right, the agency shall enter on the retention register, in the order of retention standing, the name of each competing employee who is:
(1) In the competitive level;
(2) Temporarily promoted from the competitive level by temporary or term promotion; or
(3) Detailed from the competitive level under 5 U.S.C. 3341 or other appropriate authority.
(b)
(1) The name of each employee serving under a time limited appointment or promotion to a position in a competitive level shall be entered on a list apart from the retention register for that competitive level, along with the expiration date of the action.
(2) The agency shall list, at the bottom of the list prepared under paragraph (b)(1) of this section, the name of each employee in the competitive level with a written decision of removal under part 432 or 752 of this chapter.
[51 FR 319, Jan. 3, 1986, as amended at 62 FR 62500, Nov. 24, 1997]
An employee who has received a written decision under part 432 or 752 of this chapter to demote him or her competes under this part from the position to which he or she will be or has been demoted.
[62 FR 62500, Nov. 24, 1997]