[Federal Register: May 31, 2005 (Volume 70, Number 103)]
[Rules and Regulations]
[Page 31277-31315]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31my05-9]
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Part V
Office of Personnel Management
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5 CFR Part 294, et al.
Changes in Pay Administration Rules for General Schedule Employees;
Interim Rule
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OFFICE OF PERSONNEL MANAGEMENT
5 CFR Parts 294, 359, 362, 451, 530, 531, 532, 534, 536, 550, 591,
630, 831, and 842
RIN 3206-AK88
Changes in Pay Administration Rules for General Schedule
Employees
AGENCY: Office of Personnel Management.
ACTION: Interim rule with request for comments.
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SUMMARY: The Office of Personnel Management is issuing interim
regulations to implement section 301 of the Federal Workforce
Flexibility Act of 2004, which amends the rules governing pay setting
for employees covered by the General Schedule. In particular, we are
revising provisions related to special rates, locality rates, and
retained rates. The statutory and regulatory changes are designed to
correct a variety of pay administration anomalies that resulted in
unfair pay reductions or unwarranted pay increases, to allow locality
rates and special rates to be treated in similar ways, and to improve
the operation of the special rates program.
DATES: Effective Date: The interim regulations are effective on May 1,
2005.
Comment Date: Comments must be received on or before August 1,
2005.
ADDRESSES: Send or deliver written comments to Donald J. Winstead,
Deputy Associate Director for Pay and Performance Policy, Division for
Strategic Human Resources Policy, Office of Personnel Management, Room
7H31, 1900 E Street, NW., Washington, DC 20415-8200, by FAX at (202)
606-0824; or by e-mail at pay-performance-policy@opm.gov.
FOR FURTHER INFORMATION CONTACT: Bryce Baker by telephone at (202) 606-
2858; by fax at (202) 606-0824; or by e-mail at
pay-performance-policy@opm.gov.
SUPPLEMENTARY INFORMATION: The Office of Personnel Management (OPM) is
issuing interim regulations to revise the rules that govern pay setting
for Federal employees covered by the General Schedule (GS) pay system.
The interim regulations implement the amendments made by section 301 of
the Federal Workforce Flexibility Act of 2004 (Pub. L. 108-411, October
30, 2004), hereafter referred to as ``the Act.'' Section 301 amended
provisions in 5 U.S.C. chapter 53 relating to the administration of
special rates, locality rates, and retained rates. These amendments
become effective on the first day of the first pay period beginning on
or after April 28, 2005--i.e., May 1, 2005. Since the regulations are
necessary to implement the statutory changes, these regulations are
issued as interim regulations that take effect on May 1, 2005.
The changes made by the Act and these implementing regulations are
designed to correct a variety of pay administration anomalies that have
produced unfair pay reductions or unwarranted pay increases for
employees in certain situations. These anomalies resulted largely from
the introduction of locality pay into the General Schedule pay system
in 1994. Many of the basic pay administration rules treated special
rates under 5 U.S.C. 5305 as rates of basic pay, but ignored locality
rates under 5 U.S.C. 5304. A key objective of the Act and these
regulations is to treat locality rates and special rates in similar
ways--i.e., to put them on the same footing. This will result in pay
rules that are more rational, consistent, and equitable. (See the
legislative history of section 301 of Pub. L. 108-411, as documented in
pages 17 through 22 of House Report 108-733, October 5, 2004.)
The Act requires that, when an employee's official worksite is
changed to a new location where different pay schedules apply, the
employee's pay must be converted to the new pay schedules in the new
location before processing any simultaneous pay action (other than a
general pay adjustment). This geographic conversion requirement is
found in 5 U.S.C. 5305(i), 5334(g), and 5363(c), as added or amended by
the Act, and is incorporated in these interim regulations. Geographic
conversion ensures that an employee whose official worksite is moved to
a new location receives the same rate of pay as an employee at the same
grade and step who was already stationed at the new location and who
undergoes the same pay actions.
The Act also is intended to improve the operation and effectiveness
of the special rates program by allowing special rate determinations to
be driven by staffing considerations rather than pay administration
issues and by clarifying OPM's authority to review and adjust special
rates as it determines necessary. The Act also revises the special
rates authority in other respects. For example, the Act raises the pay
limitation on special rates from the rate for level V of the Executive
Schedule to the rate for level IV of the Executive Schedule. The Act
also allows agencies to ``opt out'' of special rate schedules.
The Act makes significant changes related to pay retention under 5
U.S.C. 5363. Through an amendment to 5 U.S.C. 5302, locality payments
under 5 U.S.C. 5304 will no longer be paid on top of a retained rate.
Rather, an employee's pay retention entitlement will be derived from an
employee's payable (highest) rate of basic pay (including any locality
rate or special rate) before the action triggering pay retention, and
that entitlement will be compared to the highest applicable rate range
(including a locality rate range or a special rate range) for the
employee's current position. If the pay retention entitlement results
in a retained rate above the maximum rate of the highest applicable
rate range for an employee's position, that retained rate generally
will be increased by an amount equal to 50 percent of any increase in
that maximum rate. A reduction in an employee's payable rate of basic
pay resulting from conversion to a lower pay schedule in a different
geographic area (i.e., geographic conversion) does not trigger
entitlement to pay retention. Consistent with uncodified section
301(d)(2) of the Act, we are issuing regulations governing the
conversion of any existing locality-adjusted retained rate to a new
retained rate that is equal in amount. Also, various other types of
saved rates (i.e., rates above range maximums) are being converted to
retained rates under 5 U.S.C. 5363.
We are taking this opportunity to reorganize the affected
regulations and to clarify the meaning of certain provisions. We have
replaced the verb ``shall'' with ``must'' for added clarity and
readability. We intend that any provision using the verb ``must'' has
the same meaning and effect as previous provisions using ``shall.''
We are also taking this opportunity to remove regulations that are
obsolete. We are removing subpart C of part 531, which dealt with
special geographic adjustments for law enforcement officers (LEOs)
under section 404 of the Federal Employees Pay Comparability Act of
1990. All those special geographic adjustments for LEOs have been
surpassed by regular locality payments under 5 U.S.C. 5304. In
addition, we are removing subpart G of part 531, which dealt with
``continued rates''--a form of saved rates that were created under the
old interim geographic adjustment authority. For the few employees who
may have an existing continued rate above the applicable rate range,
the continued rate will be converted to a retained rate under 5 U.S.C.
5363, as described in the foregoing paragraph on pay retention changes.
These interim regulations also include conforming changes in other
parts of OPM's regulations, such as corrections
[[Page 31279]]
of regulatory references and revisions of the definition of ``rate of
basic pay.''
The remainder of this SUPPLEMENTARY INFORMATION reviews the
significant changes made in the key affected parts and subparts of the
regulations.
Special Rates
We have revised and reorganized OPM's regulations on special rate
schedules for General Schedule employees in part 530, subpart C. The
revisions implement certain provisions in section 301 of Public Law
108-411 and make other changes to clarify the rules governing these
schedules. Following are the key provisions contained in the revised
subpart C:
A special rate is defined as consisting of a base rate
(i.e., the GS rate or, if applicable, the law enforcement officer (LEO)
special base rate) and a special rate supplement. A special rate
employee is entitled to the applicable GS rate or LEO special base rate
for his or her grade and step, just as any other GS employee. A special
rate employee's pay entitlement differs because of the special rate
supplement.
The purposes for which a special rate is basic pay are
specified in regulation. In general, a special rate is basic pay for
the same purposes as a locality rate.
An agency may choose to exclude its employees from
coverage under a proposed or existing special rate schedule.
An employee is not entitled to a special rate if he or she
is entitled to a higher rate of basic pay under another authority
(e.g., a locality rate or retained rate).
A special rate may not exceed the rate for level IV of the
Executive Schedule.
At the time of a GS annual pay adjustment, a special rate
employee's GS rate or LEO special base rate is adjusted. OPM determines
whether the special rate supplement is adjusted and the amount of any
adjusted supplement.
Rules for converting an employee's rate of basic pay upon
establishment, adjustment, or discontinuation of a special rate
schedule are specified in subpart C. The conversion rules that apply to
schedule adjustments implement 5 U.S.C. 5305(f).
Subpart C of part 530 does not contain all the pay-setting rules
that apply to special rate employees. Parts 531 and 536 (dealing with
basic pay administration and pay retention, respectively) also
implement amendments to 5 U.S.C. 5305 made by Public Law 108-411. For
example, section 5305(i) requires that a special rate undergo a
geographic conversion when the employee's official worksite is changed
to a location where different pay schedules apply. This provision is
implemented in 5 CFR 531.205. In addition, Public Law 108-411 amended
the pay retention law (5 U.S.C. 5363(c)) to provide that a reduction in
an employee's special rate as a result of a geographic conversion is
not a basis for pay retention. This provision is implemented in 5 CFR
536.303(a). House Report 108-733 (October 5, 2004) stated that section
5363(c) was ``intended to clarify that local special rates are a
Government tool to address a local labor market problem, not an
employee entitlement that employees should be allowed to carry to
another area where there is no such problem'' (page 19). This approach
provides for consistent treatment of special rates and locality rates
for pay retention purposes.
House Report 108-733 (page 19) also emphasized that the amendments
to section 5305 ``would make clear that the Government has full
authority to adjust or not to adjust special rate schedules based on
staffing needs.'' The House Report explained that determinations
regarding special rate schedule adjustments are made solely under OPM's
authority in 5 U.S.C. 5305(d). This means OPM may make determinations
regarding the adjustment of special rate supplements based on its
assessment of staffing needs, without regard to the percentage increase
applied to GS rates. (Special rate employees receive the same
adjustment in their underlying GS rate as other GS employees. Thus,
OPM's discretion lies in adjusting the special rate supplement, which,
for any given grade in a special rate schedule, may be a fixed-dollar
amount or a fixed-percentage increase.) OPM may, at any time, conduct
general or targeted reviews of existing special rate schedules and make
adjustments in special rate supplements as it deems necessary.
Section 530.309, ``Miscellaneous provisions,'' is patterned after a
parallel section of miscellaneous provisions in the locality pay
regulations at 5 CFR 531.611 (which were part of the former locality
pay regulations at 5 CFR 531.606).
Locality Rates
We have revised and reorganized OPM's regulations in part 531,
subpart F, governing locality-based comparability payments under 5
U.S.C. 5304. The revisions implement certain provisions in section 301
of Public Law 108-411 and make other changes to clarify the rules
governing these payments. Following are the key changes contained in
the revised subpart F:
The definition of scheduled annual rate of pay is revised
to exclude any retained rate. Based on amendments to 5 U.S.C. 5302(8)
and 5363, a retained rate is no longer supplemented by locality
payments. Instead, a retained rate is a rate that is derived from an
employee's payable (highest) rate of basic pay (including any locality
payment or special rate supplement) and compared to the highest
applicable rate range for the employee's position (including a locality
rate range or special rate range). (See later discussion of retained
rates in the ``Grade and Pay Retention'' section of this Supplementary
Information.)
Section 531.608(b) makes clear that a special rate
employee is entitled to any applicable locality payment on the same
basis as any other GS employee (i.e., based on the employee's
underlying GS rate or LEO special base rate); however, if the locality
rate exceeds the corresponding special rate, the special rate
entitlement is terminated.
Section 531.609 clarifies that the geographic conversion
principle applies to the conversion of an employee's locality rate when
his or her official worksite is changed to a new location where
different pay schedules apply. (This is consistent with the manner in
which locality rates have always been treated.)
Section 531.610 lists new purposes for which a locality
rate is considered basic pay: (1) Applying GS pay administration
provisions to the extent provided in part 531, subpart B; (2) applying
pay administration provisions for prevailing rate employees that use a
GS rate of basic pay (except as otherwise provided in part 532); (3)
applying grade and pay retention provisions in 5 CFR part 536
(consistent with 5 U.S.C. 5361(4) and 5363, as amended); (4) computing
recruitment, relocation, and retention incentives under 5 U.S.C. 5753
and 5754 (consistent with OPM's authority under those amended sections
of law); and (5) computing certain performance-based cash awards as a
percentage of basic pay (consistent with 5 U.S.C. 4505a, which was
amended to eliminate the prohibition on using locality rates to compute
such awards).
We are inviting comments on whether the final regulations should
make a change in the treatment of locality rates in computing danger
pay allowances and post differentials. Since August 2004, OPM
regulations have provided that locality rates are considered basic pay
in computing danger pay allowances and post differentials in
[[Page 31280]]
foreign areas for which the State Department has authorized danger pay
allowances, as long as the employee's official worksite is located in a
locality pay area (i.e., within the 48 contiguous States). (See 69 FR
47353, August 5, 2004.) However, locality rates are not used in
computing post differentials in other foreign areas or in nonforeign
areas. These interim regulations retain these existing policies. We
note that this issue has limited scope, since employees receiving
locality rates are eligible for post differentials only when they are
temporarily detailed (including a work assignment while in temporary
duty travel status) to a post differential area for at least 42
consecutive days. By law, locality pay does not apply to employees
whose official worksite is outside the 48 contiguous States. (See 5
U.S.C. 5304(f).)
Under these interim regulations, in post differential areas
(foreign and nonforeign) where danger pay allowances do not apply,
special rates are considered basic pay in computing post differentials,
while locality rates are not. We invite comments on whether this
difference in treatment is appropriate.
We also invite comments on whether we should continue to have a
different policy for danger pay areas than for other post differential
areas (foreign and nonforeign). Should we maintain the existing policy
of using detailed employees' locality rates in computing danger pay
allowances and post differentials in danger pay areas? Should we extend
this policy to other post differential areas? If a policy determination
is made to bar the use of locality rates in computing danger pay
allowances or post differentials in all areas or to continue to bar the
use of locality pay in computing post differentials in non-danger pay
areas, should we also change the policy allowing detailed employees'
special rates to be used in such computations so that locality rates
and special rates are administered consistently? Commenters should
provide specific reasons in support of their position.
Other significant clarifying changes in subpart F of part 531
include the following:
In Sec. 531.607(b), we address the special hourly rate
computations that apply to firefighters covered by 5 CFR part 550,
subpart M.
Throughout subpart F, we replace the term official duty
station with official worksite. (See especially Sec. Sec. 531.602 and
531.605.)
In addition to using the new term official worksite, these interim
regulations also implement changes in determining an employee's
official worksite that OPM proposed on January 5, 2005, as part of a
larger notice of proposed rulemaking (70 FR 1068). That proposal would
add a new Sec. 531.605 to define the requirements for determining an
employee's official duty station (hereafter referred to as ``official
worksite'') for the purpose of identifying an employee's location-based
pay entitlements, including special rate supplements and locality
payments. The proposed regulations also addressed official worksite
determinations for employees temporarily working at other locations and
teleworking from an alternative worksite. We received comments on this
part of our proposal from four agencies, one employee union, and two
individuals.
An agency felt that the determination of an employee's official
worksite for pay purposes should be made by individual agencies and not
be subject to Governmentwide regulations. We do not agree. The
regulations provide agencies a degree of flexibility in determining an
employee's official worksite. However, providing certain specific
criteria in regulations is essential to ensure that agencies pay
employees fairly and consistently, especially in situations such as
telework arrangements.
An agency recommended that Sec. 531.605 be revised to permit an
agency to leave the official worksite unchanged during the temporary
assignment of an employee to a position of record in a different
location when relocation expenses under 5 U.S.C. 5737 are not
authorized. The agency correctly stated that under current policy, when
an employee is temporarily promoted or reassigned (not detailed) to a
position in a different geographic location, the position to which
temporarily promoted or reassigned must be the employee's position of
record for pay purposes. (Generally, if detailed, an employee is paid
based on his or her permanent position of record, including the
location-based pay entitlements associated with the official worksite
of the permanent position.) Current policy provides that the employee
must receive the location-based pay entitlements based on the official
worksite of the temporary position of record. The agency believes that
if the length and/or circumstances of the temporary promotion or
reassignment do not warrant payment of relocation benefits under 5
U.S.C. 5737, agencies should be able to temporarily promote or reassign
the employee to the new position of record, but leave the official
worksite unchanged. Thus, the employee would receive the location-based
pay entitlements for the official worksite of his or her permanent
position.
We believe there are some compelling arguments for changing the
current policy regarding temporary promotions and reassignments to
positions in a different location so that an employee's location-based
pay entitlements are based on the official worksite of the employee's
permanent position (unless the employee is receiving relocation
benefits under 5 U.S.C. 5737). However, since this interim regulation
takes effect upon publication, we are inviting comments on this
proposed policy change so that we can fully consider all the relevant
issues before making a change. Any change in the final regulations will
take into account those comments.
The employee union and two individuals felt that official worksite
determinations for pay purposes should be based on where the employee
works most or the majority of the time. The commenters were
particularly concerned that Sec. 531.605(d) of the regulations would
require agencies to designate the regular or reporting worksite as the
employee's official worksite if the employee works at that site at
least once a week. An agency requested that the regulations clarify
that teleworkers must work at the reporting worksite at least once a
week on a regular and recurring schedule and for a full workday.
We do not agree with using a majority-of-time criterion instead of
a once-a-week criterion for determining the official worksite of
employees for pay purposes. The once-a-week requirement in Sec.
531.605(d) applies only to employees working under telework
arrangements, which we believe require special rules. Under the interim
regulations, the regular worksite will remain the teleworker's official
worksite, unless the employee does not regularly spend some time at the
regular worksite. We believe the once-a-week requirement is a
reasonable standard. In addition, requiring agencies to track the
number of hours an employee works at different worksites each week and
whether the employee worked a full or partial workday at the regular
worksite would be administratively burdensome for agencies and could
result in frequent changes in an employee's official worksite and
locality or other pay rates. However, we have revised the proposed
regulations to provide that the teleworker must report to the regular
worksite at least once a week on a regular and recurring basis in order
for the regular worksite to be the employee's official worksite.
[[Page 31281]]
An agency recommended adding an exception to Sec. 531.605(d) to
provide agencies with the option of designating the regular worksite as
the official worksite of a teleworker provided the telework site is
within the commuting area of the regular worksite. The agency was
concerned about applying the proposed rules to a number of its
teleworkers who work at various locations other than their established
official worksite.
The interim regulations revise Sec. 531.605(d) to provide that an
employee under a telework agreement whose work location varies on a
daily basis need not report at least once a week to the established
official worksite of the employee's position of record (where the
employee's work activities are based) as long as the employee is
performing work within the locality pay area for that regular official
worksite at least once a week on a regular and recurring basis. The
interim regulations provide that if an employee covered by a telework
agreement does not report to the regular official worksite or an
alternative worksite in the same locality pay area at least once a
week, the employee's official worksite is the location of the telework
site (except as provided in Sec. 531.605(d)(3)). (Similar provisions
apply in determining whether an employee's official worksite is covered
by a special rate schedule or a nonforeign area cost-of-living
allowance or post differential. See the definition of ``official
worksite'' in Sec. Sec. 530.302 and 591.201.)
An agency requested clarification as to the circumstances in which
it would be appropriate for an agency to approve a temporary exception
to allow a regular worksite to be the official worksite for pay
purposes when a teleworker does not commute to the regular worksite at
least once a week. Another commenter requested guidance on when
agencies should reevaluate the official worksite determination in such
temporary telework arrangements.
Section 531.605(d)(3) of these interim regulations includes an
example of an appropriate situation in which an agency may make a
temporary exception to the once-a-week requirement--namely, when an
employee is recovering from an injury or medical condition that
prevents the employee from commuting to the regular worksite. Other
examples include temporary emergency situations at the regular worksite
or a critical project that requires the employee to telework
temporarily. The interim regulations allow an authorized agency
official to determine the temporary situations in which an exception
may be applied. Agencies should periodically reevaluate the official
worksite of an employee under a temporary telework arrangement.
An agency asked for clarification on how to determine the official
worksite of an employee who normally teleworks at an alternative site
full time when that employee is assigned to work in a different
location on a temporary basis. Under Sec. 531.605 of these interim
regulations, agencies have the flexibility to change such an employee's
official worksite to the location of a temporary work assignment or to
keep the employee's official worksite at the location of the telework
arrangement, depending on the nature of the assignment. Agencies may
need to reevaluate such decisions periodically if the time spent on
such temporary work assignments is extended. Agencies also may cancel
the telework agreement in such situations.
Finally, several commenters felt that regulations should address
the tax, travel, reduction in force, and bargaining unit coverage
implications of making official worksite determinations. Since the
official worksite regulations apply only when determining an employee's
location-based pay entitlements, these comments are outside the scope
of these regulations.
General Schedule Basic Pay Setting
We have revised and reorganized OPM's regulations on GS rate of
basic pay determinations in part 531, subpart B. The revisions
implement certain provisions in section 301 of Public Law 108-411 and
make other changes to clarify the GS pay-setting rules. Following are
the key changes contained in the revised subpart B:
Additional terms are defined in the new Sec. 531.203,
including highest applicable rate range, official worksite, payable
rate, pay schedule, position of record, and special rate supplement.
Also, the term rate of basic pay is redefined to include a locality
rate. (Under the former regulations, locality rates were ignored in
applying the rules in subpart B.)
Section 531.204 describes the relationship among various
types of rates of basic pay--including GS rates, LEO special base
rates, locality rates, and special rates.
Section 531.205 sets forth the geographic conversion rule,
which is used to convert an employee's rate(s) of basic pay when his or
her official worksite is changed to a new location where different pay
schedules apply. (This section implements the statutory geographic
conversion provisions in 5 U.S.C. 5305(i), 5334(g), and 5363(c).)
Section 531.206 establishes the order of precedence for
processing simultaneous pay actions. In particular, this section shows
that geographic conversions must be processed after any general pay
adjustment (related to changes in pay schedules) but before any other
pay action (e.g., a promotion).
Section 531.212 includes new provisions related to the
authority to set a newly appointed employee's rate of basic pay above
the minimum of the rate range based on superior qualifications or
special agency needs. In particular, we make clear that this authority
is used to set an employee's ``payable'' or highest rate of basic pay,
including consideration of any applicable locality rate or special
rate.
Sections 531.213 through 531.215 establish rules for
setting pay upon lateral reassignment or transfer, promotion, or
demotion. Promotions and demotions must be processed after applying the
geographic conversion rule, if applicable, and using the converted
payable rate of basic pay as the employee's existing rate immediately
before the promotion or demotion. Locality rates and special rates are
considered rates of basic pay in applying these rules.
Section 531.216 modifies the rules regarding setting pay
for employees moving from a Department of Defense or Coast Guard
nonappropriated fund instrumentality (NAFI) to a GS position to take
into account locality rates. Also, the NAFI maximum payable rate rule
is revised to take into account the geographic location where the NAFI
highest previous rate was earned, consistent with the rules governing
geographic conversion.
Section 531.221 modifies the GS maximum payable rate rule,
which allows an agency to set an employee's rate of pay based on his or
her ``highest previous rate'' in a Federal civilian job. The modified
GS maximum payable rate rule now takes into account locality rates when
the employee's highest previous rate was based on a special rate or on
a rate earned in a non-GS pay system. (Under the interim regulations,
if an employee's highest previous rate was earned in a GS position, the
maximum payable rate rule generally is applied using the underlying GS
rate (or LEO special base rate), which avoids the need to apply the
geographic conversion rule.)
Sections 531.241 through 531.247 consolidate various
special rules for ``GM employees''i.e., GS employees who were formerly
covered by the Performance Management and Recognition System for
managers and supervisors at grades GS-13, 14, and 15
[[Page 31282]]
and who may have rates of basic pay between the established GS step
rates. Consistent with the changes made by Public Law 108-411 for other
GS employees, GM employees' locality rates will be taken into account
in applying the various pay-setting rules. If a GM employee is entitled
to a special rate, the special rate is computed by adding the
applicable special rate supplement on top of the GM employee's GS rate.
(When pay schedules are adjusted, the GM employee's underlying GS rate
must be redetermined using the relative position-in-range methodology
presented in Sec. 531.244, which is the same basic methodology used in
OPM's former regulations.)
The use of locality rates in applying the GS pay-setting rules,
along with the use of the geographic conversion rule when an employee's
official worksite is changed to a new location, represent a significant
change in GS pay administration. The geographic conversion rule
requires that an employee's rate(s) of basic pay must first be
converted to a corresponding rate(s) on the pay schedule that would
apply to the employee's existing position of record if he or she were
stationed at the new official worksite. No simultaneous change in the
employee's position of record (defined as including grade, occupational
series, agency, law enforcement officer status, and any other element
that affects coverage under a pay schedule, other than the official
worksite) or any simultaneous pay action (other than a general pay
adjustment) is considered until after the geographic conversion. The
converted rate(s) of basic pay resulting from the geographic conversion
must be treated as the employee's existing rate(s) of basic pay in
applying the next simultaneous pay action in the order of precedence. A
reduction in an employee's payable rate of basic pay as a result of a
geographic conversion is not a basis for pay retention, even if the
move is involuntary. This does not represent a change in treatment of
locality rates, but does represent a change in the treatment of special
rates.
The legislative history of Public Law 108-411 shows that a major
objective of the geographic conversion rule was to provide the same pay
result that would have occurred if the employee in question had moved
laterally without a change in position to the new geographic location
and then underwent a position change. House Report 108-733 (October 5,
2004) stated that the geographic conversion rule ``would make it clear
that an employee with the same work history as another employee will
not have higher pay simply because he or she came from an area where
higher pay rates applied, while also ensuring consistency between the
treatment of locality rates and special rates'' (page 20).
The geographic conversion rule will be particularly significant in
terms of how it affects an employee who is promoted to a position at a
different official worksite, where different pay schedules would apply
to the employee's position of record before promotion. After applying
any simultaneous general pay adjustment (as described in Sec.
531.206), the agency must first convert the employee's rate(s) of basic
pay to the applicable pay schedule(s) for the new official worksite,
based on the employee's position of record (including grade) and step
(or rate) before promotion. The resulting rate(s) of basic pay must be
treated as the employee's existing rate(s) in processing the promotion
action. (However, if the employee is simultaneously entitled to a
within-grade increase or quality step increase on the same date as the
promotion, that increase would be applied before processing the
promotion.)
Once the geographic conversion rule has been applied, the agency
must follow the promotion rule in Sec. 531.214. The standard method of
applying the promotion rule consists of the following steps:
(1) Find the employee's existing step (or rate) in the GS rate
range (or LEO special base rate range, if applicable) and increase that
rate by two GS within-grade increases.
(2) Determine the payable (highest) rate of basic pay for the step
or rate determined in paragraph (1) by applying any applicable locality
payment or special rate supplement.
(3) Identify the highest applicable rate range for the employee's
position of record after promotion and find the lowest step rate in
that range that equals or exceeds the rate determined in paragraph (2).
This is the employee's payable rate of basic pay upon promotion.
The interim regulations provide for an alternate method of applying
the promotion rule which involves (1) applying the promotion rule using
the pay schedules that would apply to the employee's position of record
if only the employee's grade were changed and (2) converting the
resulting rate to the pay schedules for the actual position of record
after promotion. This method yields a different result from the
standard method only when there is a change in the employee's position
of record (e.g., change in occupational series) which would cause the
employee to have a different pay schedule and different highest
applicable rate range at the higher grade. For example, an occupational
series change in conjunction with a promotion could result in an
employee becoming covered by a special rate schedule at the higher
grade. The standard method would not provide the employee with any
increase in pay based on movement into a special rate category. In
contrast, the alternate method would apply the promotion rule without
regard to the new special rate schedule and then would laterally
convert the resulting rate to the corresponding rate on the special
rate schedule, which would provide an increase reflecting the
difference between the special rate schedule and the former pay
schedule. This alternate method is consistent with the method found in
the former special rate regulations at 5 CFR 530.306(f), which dealt
with the promotion of an employee from a position not covered by a
special rate schedule to a position covered by a special rate schedule.
However, the alternate method also applies in other situations, such as
when an employee moves from a lower-paying special rate schedule to a
higher-paying special rate schedule.
The objective of the alternate method is to treat an employee who
is being directly promoted to a higher pay schedule the same as a
similarly situated employee who is promoted and then later (in a
separate action) reassigned to a position covered by the higher pay
schedule. The alternate method mandatorily applies in lieu of the
standard method whenever it produces a higher payable rate upon
promotion. In addition, an agency may, at its sole discretion, use the
alternate method when it produces a lower payable rate upon promotion.
For example, if an employee is moving to a position in a different
career field, an agency may determine that it is not appropriate to
allow the employee's pay upon promotion to be set based on a special
rate for the employee's former job.
The alternate method of applying the promotion rules departs from
the standard method after the step of determining the payable (highest)
rate of basic pay at the lower (pre-promotion) grade that reflects an
increase of two within-grade increases. Under the alternate method,
that payable rate must be compared to the highest applicable rate range
for the employee's grade after promotion based on consideration of pay
schedules that apply to the employee's position of record before
promotion. Any pay schedule that
[[Page 31283]]
applies solely to the employee's position of record after promotion
would be ignored. The employee's rate of basic pay is set at the lowest
step rate in the highest applicable rate range that exceeds the
specified rate. Then the employee is converted to the new highest
applicable rate range (reflecting any new pay schedule that applies
after promotion) by setting the payable rate at the corresponding step
rate in that range.
To aid in understanding the alternate method, we provide an example
using 2005 pay schedules. In this example, we are assuming that a GS-7,
step 7, human resources specialist (occupational series GS-201)
stationed in Atlanta, Georgia, is being promoted to a GS-9 information
technology specialist position (occupational series GS-2210) in
Washington, DC.
Step A--Apply the geographic conversion rule to determine the
rates of basic pay for the GS-7, step 7, position in Washington, DC.
Based on the GS-7 position before promotion (including the GS-201
occupational series), the pay schedules applicable to the employee
in Washington, DC, would be the General Schedule and the locality
rate schedule applicable in Washington, DC (Salary Table 2005-DCB).
Step B--Using the underlying General Schedule, increase the GS-
7, step 7, rate by two within-grade increases, which produces the
GS-7, step 9, rate ($38,719).
Step C--The payable (highest) rate of basic pay for GS-7, step
9, is the corresponding GS-7, step 9, locality rate in Washington,
DC ($44,906).
Step D--If the employee were promoted to a GS-9 position in the
GS-201 human resources management series, the highest applicable
rate range for that GS-9 position after promotion would be the GS-9
locality rate range in Washington, DC (15.98 percent above GS
rates). The GS-9, step 3, locality rate ($46,255) is the lowest step
rate in that range that equals or exceeds the GS-7, step 9, locality
rate from step C.
Step E--Convert the GS-9, step 3, locality rate to the higher
GS-9, step 3, special rate that applies to the employee's GS-2210
information technology specialist position after promotion. The
applicable special rate schedule is Table 999C. The GS-9, step 3,
special rate on that schedule is the payable rate of basic pay upon
promotion ($51,847). (At GS-9, a special rate in Table 999C is 30
percent above the corresponding GS rate.)
Step F--The standard method would have compared the GS-7, step
9, locality rate directly to the higher GS-9 range of special rates
and produced a rate of GS-9, step 1 ($48,607). Since the rate
produced by the alternate method (GS-9, step 3, or $51,847) is
greater than the rate produced by the standard method, the result of
the alternate method is used.
In addition to changes in subpart B of part 531 that relate
directly to the changes made by Public Law 108-411, the interim
regulations in Sec. 531.212 (dealing with the superior qualifications
and special needs pay-setting authority) include some policy
clarifications and changes beyond the immediate requirements of Public
Law 108-411. For example, the interim regulations define what is meant
by superior qualifications and special needs so that agencies better
understand how this pay flexibility may be used. The interim
regulations also expand and clarify the exceptions to the 90-day break-
in-service requirement to allow greater access to the superior
qualifications and special needs pay-setting authority. For example,
the interim regulations consolidate several of the former exceptions
into a broader exception covering any temporary or time-limited
appointment in the competitive or excepted service. If an individual
was employed under any competitive or excepted service temporary
appointment during the 90 days immediately preceding an appointment to
a GS position, the agency could use the superior qualifications and
special needs pay-setting authority. The interim regulations also
expand the elements that can be considered in justifying the higher
rate, allowing the use of factors other than existing pay, consistent
with 5 U.S.C. 5333.
We are inviting comments regarding a proposal to establish a
regulatory time limit on the period of time from which an employee's
highest previous rate may be drawn. Consistent with current
regulations, the interim regulations in Sec. 531.221 (dealing with the
maximum payable rate rule) establish no time limit regarding how long
ago a highest previous rate was earned. We believe it would be
reasonable to limit consideration of rates of pay earned during a
recent time period (e.g., 5 or 10 years before the action in question).
Even under the current regulations, an agency has discretion to set an
employee's pay at any rate equal to or less than the maximum payable
rate; thus, an agency could take into account the age of an employee's
highest previous rate in exercising that discretion. The proposed time
limit would reduce the administrative burden associated with
identifying an employee's highest previous rate over an entire career
and comparing the highest previous rate with pay schedules in effect
many years ago.
General Schedule Within-Grade Increases
We have revised OPM's regulations on within-grade increases for
General Schedule employees in part 531, subpart D. The revisions
implement certain provisions in section 301 of Public Law 108-411 and
make other changes to clarify the rules governing GS within-grade
increases.
We have revised subpart D to exclude consideration of special
rates. For the purpose of subpart D, the term rate of basic pay is
defined as a GS base rate or an LEO special base rate. Subpart D deals
with adjusting an employee's base rate in connection with within-grade
increases. Any applicable locality payment or special rate supplement
is paid on top of the base rate.
We have revised the definition of equivalent increase in Sec.
531.403 and related regulations in Sec. 531.407. We have defined
equivalent increase as an increase in an employee's rate of basic pay,
or an opportunity for such an increase under non-GS pay systems,
resulting from certain events or actions listed in Sec. 531.407. The
interim regulations no longer require that agencies add up the dollar
value of multiple increases under non-GS pay systems in determining
when an equivalent increase occurred, which was required under the
former regulations at Sec. 531.407(a) and (b). The new events-based
approach avoids the need to consider locality payments, special rate
supplements, or other similar supplements or to apply geographic
conversion rules in making equivalent increase determinations. We note
that the former regulations at Sec. 531.407(d) had provided that a
zero merit increase under the former Performance Management Recognition
System would be treated as an equivalent increase, which is consistent
with the events-based approach.
Grade and Pay Retention
We have revised and reorganized OPM's regulations on grade and pay
retention in part 536. The revisions implement certain provisions in
section 301 of Public Law 108-411, incorporate changes OPM previously
issued as proposed regulations, and make other changes to clarify the
rules governing the grade and pay retention authorities under 5 U.S.C.
chapter 53, subchapter VI. We have reorganized part 536 into four
subparts that provide (1) general provisions relating to grade and pay
retention, (2) rules for grade retention, (3) rules for pay retention,
and (4) appeals and miscellaneous provisions. Except for correcting
citations and moving former Sec. 536.308 to the grade retention
subpart, the appeals and miscellaneous provisions formerly contained in
5 CFR part 536, subpart C, are not revised by this interim regulation.
(See redesignated subpart D.)
[[Page 31284]]
The following new provisions in the revised part 536 implement
section 301 of Public Law 108-411:
Additional terms are defined in the new Sec. 536.103,
including highest applicable rate range, official worksite, payable
rate, pay schedule, position of record, and rate range. Also, the term
rate of basic pay is redefined to include a locality rate, consistent
with 5 U.S.C. 5361(4). (Under the former regulations, locality rates
were ignored when applying the rules in part 536.) The definition of
representative rate is redefined as described later in this
Supplementary Information.
Sections 536.206, 536.301, 536.302, 536.303, 536.304,
536.305, and 536.308 incorporate the geographic conversion rule into
the grade and pay retention regulations, where it is used to convert a
rate(s) of basic pay when an employee's official worksite is changed to
a new location where different pay schedules apply. The converted rate
resulting from geographic conversion is treated as the employee's
existing rate in applying the pay retention provisions. (These
provisions implement the statutory geographic conversion provisions in
5 U.S.C. 5305(i), 5334(g), and 5363(c).)
Section 536.105 clarifies when agencies must compare the
grades of positions in different pay systems using representative rates
under the grade retention rules. This section also provides that, for
positions located at different official worksites where different pay
schedules apply, the geographic conversion rules must be applied before
comparing the representative rates. In addition, the definition of
representative rate in Sec. 536.103 is revised to mean the payable
(highest) rate of basic pay (including any locality payment or special
rate supplement) for the specified point in the range (e.g., GS step 4
). The definition also provides that in comparing grades or work levels
when one of the grades or work levels is not under a covered pay
system, the representative rates that must be compared are the maximum
payable rates of basic pay (including any locality payment, special
rate supplement, or similar payment) that apply to the grade or level
of each position. (The former regulations provided agencies with the
flexibility to set the representative rate for positions under
noncovered pay systems.) This revised definition of representative rate
also must be used for making severance pay and discontinued service
retirement reasonable offer determinations. See the definition of
reasonable offer in Sec. 550.703 and the references in Sec. Sec.
831.503(b)(3)(iv) and 842.206(c)(3)(iv).
Section 536.206 modifies the rules for determining an
employee's rate of basic pay when an employee becomes entitled to grade
retention or becomes covered by different pay schedules during a period
of grade retention and the order for processing such pay actions. If
such an employee's rate of basic pay otherwise would be reduced upon
placement in a lower-paying pay schedule (excluding a reduction that
results from a geographic conversion), the employee is eligible for pay
retention under 5 U.S.C. 5363 and 5 CFR part 536, subpart C, to the
same extent as any other employee. Under the former regulations, a rate
above the maximum rate that resulted from the application of the grade
retention rules was not treated as a retained rate under 5 U.S.C. 5363.
However, consistent with section 301(d)(2) of Public Law 108-411, and
our regulatory authority in 5 U.S.C. 5365, we have revised the grade
retention regulations to provide that the normal pay retention rules
apply to employees with a retained grade.
Sections 536.301 and 536.302 clarify the situations in
which an agency must provide pay retention to an employee and the
situations in which an agency may apply optional pay retention (after
application of geographic conversion rules under Sec. 536.303(a)). We
also removed the requirement in former Sec. 536.104(a)(5) that pay
retention apply to an employee whose rate of basic pay otherwise would
be reduced as a result of placement in a lower wage area. These changes
are consistent with 5 U.S.C. 5363(c)(2), which provides that a
reduction in an employee's rate of basic pay resulting from a
geographic conversion is not a basis for entitlement to pay retention
under 5 U.S.C. 5363.
Section 536.301 also provides that an agency must provide
pay retention under part 536, subpart C, to an employee whose rate of
basic pay otherwise would be reduced (after geographic conversion) as a
result of the application of the promotion rule in 5 U.S.C. 5334(b) and
5 CFR 531.214 when the employee's payable rate of basic pay after
promotion exceeds the maximum rate of basic pay of the new rate range.
Under the former regulations, a rate of basic pay above the maximum
rate that resulted from application of the promotion rule was not
treated as a retained rate under 5 U.S.C. 5363 and 5 CFR part 536. This
change is required by an amendment to 5 U.S.C. 5334(b).
Section 536.304 modifies the rules for determining an
employee's pay retention entitlement. In particular, the new
regulations provide that an eligible employee is entitled to a retained
rate if his or her rate of basic pay (including any locality payment or
special rate, but after geographic conversion under Sec. 536.303(a))
exceeds the maximum rate of the highest applicable rate range for the
new position or geographic area. The retained rate will equal the
employee's former rate of basic pay (including any locality payment or
special rate). This section implements 5 U.S.C. 5363(b)(1).
Section 536.305 modifies the rules for adjusting a
retained rate at the time of a pay schedule adjustment. Consistent with
5 U.S.C. 5363(b)(2)(B), when a pay schedule adjustment causes the
maximum rate of the highest applicable rate range for an employee's
position to increase, the employee's retained rate is increased by 50
percent of the increase in that maximum rate. If an employee's retained
rate would fall below the maximum rate after the 50 percent increase,
the employee's payable rate is set at that maximum rate and pay
retention ceases to apply. The interim regulations make clear that,
consistent with 5 U.S.C. 5363(c), the geographic conversion rule in
Sec. 536.303(b) applies in lieu of the 50-percent adjustment rule when
a pay schedule change is caused by a change in the location of the
employee's official worksite. The interim regulations also make clear
that the 50-percent adjustment rule does not apply if a pay schedule
change is caused by a change in the employee's position of record.
Section 536.304(b)(3) provides that, when initially
established, a retained rate may not exceed (1) 150 percent of the
maximum payable rate of basic pay of the highest applicable rate range
for the grade of the employee's position of record or (2) the rate for
level IV of the Executive Schedule. Section 536.306 provides that at no
time may a retained rate exceed the rate for level IV of the Executive
Schedule and that if an employee's retained rate is limited by the
level IV rate, the employee's higher, uncapped rate is not maintained
or used for any purpose. This level IV limitation is consistent with
the level IV limit on locality rates under 5 U.S.C. 5304(g)(1) and
special rates under 5 U.S.C. 5305(a)(1) for General Schedule employees
and the level IV limitation on rates for prevailing rate employees
under 5 U.S.C. 5373. Under amended 5 U.S.C. 5365(b), OPM is authorized
to establish limitations on the application of pay retention provisions
for employees in noncovered pay systems.
Section 536.307 provides the purposes for which a retained
rate is basic pay, consistent with 5 U.S.C.
[[Page 31285]]
5363(d). A retained rate is basic pay for many of the same purposes as
a special rate or a locality rate. When a retained rate is not basic
pay, the maximum rate of basic pay for the employee's grade must be
used in place of the retained rate (e.g., for computing percentage-
based awards under 5 CFR part 451 and recruitment, relocation, and
retention incentives under 5 CFR part 575, subparts A, B, and C).
Section 536.309 provides the rules for converting retained
rates in effect on April 30, 2005, to a retained rate under new 5
U.S.C. 5363 and 5 CFR part 536, subpart C. This section covers an
employee who on April 30, 2005, was receiving (1) a retained rate under
5 U.S.C. 5363, (2) a rate paid under 5 U.S.C. 5334(b) or 5362 that was
greater than the maximum rate of basic pay payable for the grade of the
employee's position of record, or (3) a continued rate of pay under 5
CFR part 531, subparts C or G, that was greater than the maximum rate
of basic pay payable for the grade of the employee's position.
Effective on May 1, 2005, the employee's new retained rate must equal
his or her previous retained rate, including any applicable locality
payment under 5 U.S.C. 5304.
On May 25, 2000, OPM published proposed changes in part 536 (65 FR
33785) regarding the applicability of grade and pay retention to
employees moving within and between covered pay schedules (hereafter
referred to as ``covered pay systems''). Under 5 U.S.C. 5361, a covered
pay system includes the General Schedule; a prevailing rate schedule
under 5 U.S.C. chapter 53, subchapter IV; or a special occupational pay
system under 5 U.S.C. chapter 53, subchapter IX. Consistent with the
grade and pay retention statute, the former regulations provided grade
and pay retention benefits for employees moving between positions
within a covered pay system and between positions under different
covered pay systems. In addition, OPM used its regulatory authority
under 5 U.S.C. 5365 to provide agencies with the discretionary
authority in the former regulations to apply grade and pay retention
provisions to employees moving from positions not under a covered pay
system to positions under a covered pay system.
In the regulations issued on May 25, 2000, we proposed to (1)
provide agencies with the discretionary authority to apply pay
retention provisions to employees moving to or within noncovered pay
systems who would otherwise suffer a reduction in pay as a result of a
management action and to freeze any resulting retained rate (i.e., not
provide the normal 50 percent pay adjustment under former 5 CFR
536.205(c)); (2) freeze the retained rate of an employee who moves from
a noncovered pay system to a covered pay system and who receives a rate
in excess of the maximum rate applicable to the covered pay system; and
(3) prohibit the application of grade retention to any employee who
moves from a noncovered pay system.
We received comments from an agency and an employee association on
the proposed regulations. The agency requested that OPM amend the
regulations to provide agencies with the administrative authority to
establish a pay adjustment mechanism for an employee on pay retention
under a noncovered pay system as consistent as possible with the
General Schedule mechanism in the former 5 CFR 536.205(c). The
association suggested that we modify the regulations to allow such an
employee to receive the reduced pay adjustment of 50 percent, as long
as the rate of pay does not exceed the pay level previously held, or
the maximum rate of the new position, whichever is greater.
We revisited the proposal to provide agencies with the authority to
apply pay retention provisions to employees moving to or within
noncovered pay systems and have decided not to include this authority
in the revised part 536. Agencies may continue to apply pay retention
provisions at their discretion to employees moving from a noncovered
pay system to a covered pay system. See new Sec. 536.102(a).
The association also objected to our proposal to freeze the
retained rates of employees who move from a noncovered pay system to a
covered pay system and who receive a retained rate in excess of the
maximum rate applicable to the covered pay system. We revisited this
issue and have decided not to include this proposal in the revised part
536. The revised part 536 provides that employees who move from
noncovered pay systems to covered pay systems and receive a retained
rate are entitled to the normal 50 percent pay adjustment under new
Sec. 536.305. (Note that such retained rates are subject to the
limitation under new Sec. 536.306.)
These interim regulations retain the proposal that prohibits
agencies from applying grade retention to an employee who moves into a
covered pay system from a noncovered pay system. See new exclusion in
Sec. 536.102(d). Accordingly, we are removing the rule in former Sec.
536.203(b) for determining a retained grade for an employee who moves
from a position not under a covered pay system to a position under a
covered pay system. Employees entitled to grade retention immediately
prior to the effective date of these regulations as a result of
movement from a noncovered pay system to a covered pay system will
remain entitled to grade retention until one of the terminating
conditions in Sec. 536.208 applies.
The revised part 536 contains the following additional significant
clarifying and conforming changes regarding the coverage, eligibility,
and applicability of grade and pay retention:
Section 536.102 merges the coverage, applicability, and
exclusionary provisions from the former regulations into a single
coverage section that clarifies the employees covered by and excluded
from the regulations, including the coverage of employees in Department
of Defense and Coast Guard nonappropriated fund instrumentality (NAFI)
positions. (See also new Sec. 536.202(d) for information on NAFI
coverage.)
Section 536.103 adds new definitions of covered pay system
(consistent with the definition of covered pay schedule under 5 U.S.C.
5361), employee, General Schedule, management action, and prevailing
rate employee and revises the definitions of reduced in grade or pay at
the employee's request (formerly demotion at an employee's request),
reduced in grade or pay for personal cause (formerly demotion for
personal cause), temporary promotion, and temporary reassignment to
clarify coverage and eligibility provisions.
Section 536.201 clarifies the conditions under which a
movement to a lower grade is considered to be a result of reduction in
force (RIF) procedures or a reclassification process for grade
retention purposes, consistent with the guidance in the former Federal
Personnel Manual.
Section 536.203 eliminates the requirement that the 52
weeks of service needed for optional grade retention eligibility in RIF
situations must be in an agency as defined in 5 U.S.C. 5102, but
requires that such service be under a covered pay system. This change
is consistent with the new rule in Sec. 536.102(d) barring agencies
from providing grade retention to employees moving from a noncovered
pay system to a covered pay system.
Section 536.205 clarifies that an employee with a retained
grade also retains the pay system associated with that retained grade,
even if the employee's actual position is in a different covered pay
system.
Sections 536.207, 536.208, and 536.308 provide that an
employee loses
[[Page 31286]]
eligibility for or entitlement to grade and pay retention upon movement
to a position not under a covered pay system.
SES Pay Retention
We have revised OPM's regulations on establishing, adjusting, and
terminating saved rates for former members of the Senior Executive
Service (SES) who are guaranteed placement in a position covered by
another pay system (e.g., the General Schedule pay system), as provided
in subpart G of part 359. Under our broad regulatory authority in 5
U.S.C. 3596, we are revising Sec. 359.705 to make changes that are
consistent with (1) the changes made in the pay retention provisions in
part 536 in implementing section 301 of Public Law 108-411 and (2)
congressional intent as reflected in uncodified section 301(d)(2) of
that Act. The significant changes made in the interim regulations are
as follows:
Section 359.705(c) provides that an SES saved rate may not
be supplemented by any locality payment or other supplement. With the
amendment of 5 U.S.C. 5302(8), locality pay is no longer paid on top of
any kind of retained or saved rate.
Section 359.705(g) provides for conversion of any existing
locality-adjusted saved rate to a new saved rate of equal value on May
1, 2005. Without such a conversion, employees might suffer a reduction
in pay under the new rules. The saved rate will be compared to the
highest applicable rate range (including a locality rate range or
special rate range) for the employee's position of record.
Section 359.705(b) provides that, in determining the
amount of a saved rate, an agency must take into account any locality
rate or special rate (1) currently payable for the GS position in which
he or she is placed upon removal from the SES and (2) currently payable
for the GS position held before placement in the SES.
Section 359.705(d) provides that the 50-percent adjustment
rule does not apply when an employee's rate range maximum is increased
due to a change in the employee's official worksite. Instead, the
retained rate will be adjusted under the geographic conversion
authority in paragraph (e). For GS employees receiving a saved rate,
the geographic conversion rule is the same as that used for retained
rates under part 536 (i.e., it maintains the relative position of the
retained rate vis-[agrave]-vis the range maximum). Also, the 50-percent
adjustment rule does not apply when an employee's rate range maximum is
increased as a result of a position change that caused the employee to
become covered by a new pay schedule.
Other changes in Sec. 359.705 are clarifications. For example, we
have clarified that a saved rate terminates when an employee becomes
entitled to a higher rate of basic pay--e.g., when the 50-percent
adjustment would cause the saved rate to fall below the range maximum
and the employee's pay is set at the range maximum.
Waiver of Notice of Proposed Rulemaking and Delayed Effective Date
Pursuant to 5 U.S.C. 553(b)(3)(B), I find that good cause exists
for waiving the general notice of proposed rulemaking. Also, pursuant
to 5 U.S.C. 553(d)(3), I find that good cause exists for making this
rule effective in less than 30 days. These interim regulations
implement section 301 of Public Law 108-411, which became effective on
May 1, 2005. Thus, these interim regulations are necessarily effective
retroactive to May 1, 2005. Waiver of the requirement for proposed
rulemaking and making the effective date less than 30 days after
publication are necessary to ensure timely implementation of the law as
intended by Congress. To delay implementation of these regulations by
imposing a general notice of proposed rulemaking or an additional 30-
day implementation requirement would be contrary to the public interest
of good governance. It would leave Federal agencies without
regulations, required by law, directing those agencies in implementing
complex and extensive pay administration rules. Delay in implementation
would prevent uniform and consistent application of the new pay
administration rules. The public and the Federal workforce will be
benefited by timely implementation of these regulations. Comments are
being solicited which will assist OPM in issuing final regulations.
E.O. 12866, Regulatory Review
This rule has been reviewed by the Office of Management and Budget
in accordance with E.O. 12866.
Regulatory Flexibility Act
I certify that these regulations will not have a significant
economic impact on a substantial number of small entities because they
will apply only to Federal agencies and employees.
List of Subjects in 5 CFR 294, 359, 362, 451, 530, 531, 532, 534,
536, 550, 591, 630, 831, and 842
Administrative practice and procedure; Air traffic controllers;
Alimony; Claims; Decorations, medals, awards; Disability benefits;
Firefighters; Freedom of information; Government employees; Hospitals;
Income taxes; Intergovernmental relations; Law enforcement officers;
Pensions; Reporting and recordkeeping requirements; Research;
Retirement; Students; Travel and transportation expenses; Wages.
Office of Personnel Management.
Dan G. Blair,
Acting Director.
0
For the reasons stated in the preamble, OPM is amending parts 294, 359,
362, 451, 530, 531, 532, 534, 536, 550, 591, 630, 831, and 842 of title
5 of the Code of Federal Regulations as follows:
PART 294--AVAILABILITY OF OFFICIAL INFORMATION
0
1. The authority citation for part 294 is revised to read as follows:
Authority: 5 U.S.C. 552, Freedom of Information Act, Pub. L. 92-
502, as amended by the Freedom of Information Reform Act of 1986,
Pub. L. 99-570, and E.O. 12600, 52 FR 23781, 3 CFR, 1987 Comp., p.
235.
Subpart D--Cross References
Sec. 294.401 [Amended]
0
2. Amend Sec. 294.401 by removing the reference ``536.307'' and adding
in its place ``536.405''.
PART 359--REMOVAL FROM THE SENIOR EXECUTIVE SERVICE; GUARANTEED
PLACEMENT IN OTHER PERSONNEL SYSTEMS
0
3. The authority citation for part 359 continues to read as follows:
Authority: 5 U.S.C. 1302 and 3596, unless otherwise noted.
Subpart G--Guaranteed Placement
0
4. Revise Sec. 359.705 to read as follows:
Sec. 359.705 Pay.
(a) An appointee placed under this subpart in a position outside
the SES (in the same or different agency) is entitled to receive basic
pay at the highest of--
(1) The rate of basic pay in effect for the position in which the
appointee is being placed;
(2) The rate of basic pay currently in effect for the position the
appointee held immediately before being appointed to the SES; or
(3) The rate of basic pay in effect for the appointee immediately
before removal from the SES.
(b)(1) The rate of basic pay under paragraph (a)(1) and (2) of this
section includes any applicable locality payment under 5 U.S.C. 5304,
special rate supplement under 5 U.S.C. 5305, or
[[Page 31287]]
similar payment under other legal authority.
(2) When an employee is entitled to a payable rate of basic pay
under paragraph (a)(2) or (3) of this section which exceeds the maximum
payable rate of basic pay for the grade or level of the employee's
position after placement, the resulting saved rate is subject to the
adjustment and termination rules in paragraphs (d) through (f) of this
section.
(c) For an employee placed in a General Schedule position, a saved
rate established under this section may not be supplemented by a
locality payment under 5 U.S.C. 5304, a special rate supplement under 5
U.S.C. 5305, or a similar payment under other legal authority.
(d) A saved rate established under this section must be adjusted in
connection with a pay schedule adjustment according to the following
rules:
(1) When the maximum payable rate of basic pay for the grade or
level of an employee's position is increased while the employee is
receiving a saved rate, the employee is entitled to a pay adjustment
equal to 50 percent of the amount of the increase in that maximum
payable rate, except as otherwise provided in this section.
(2) If an employee's official worksite is changed while the
employee is receiving a saved rate, a change in the applicable range
maximum because of a change in an employee's official worksite is not
considered in applying paragraph (d)(1) of this section. Instead, any
adjustment of the employee's saved rate in conjunction with a change in
official worksite must be determined under paragraph (e) of this
section. If an employee's range maximum is increased because of a pay
schedule adjustment on the same effective date as a change in the
employee's official worksite, the saved rate must be adjusted under
paragraph (d)(1) of this section before applying paragraph (e) of this
section.
(3) A change in an employee's rate range maximum resulting from a
change in the employee's position (e.g., change in occupational series)
that causes the employee to be covered by a different pay schedule does
not result in application of paragraph (d)(1) of this section.
(4) When an employee's saved rate becomes equal to or lower than
the maximum payable rate of basic pay for the grade or level of the
employee's position, the employee is entitled to the maximum payable
rate, and saved pay under this section ceases to apply.
(e) When an employee receiving a saved rate established under this
section is covered by a pay system that provides different basic pay
schedules based on geographic location (such as the General Schedule
pay system), the saved rate must be adjusted in conjunction with a
change in the employee's official worksite consistent with the
geographic conversion rule for retained rates under 5 CFR 536.303(b).
(f) A saved rate established under this section must be terminated
if--
(1) The employee has a break in service of 1 workday or more;
(2) The employee is demoted based on unacceptable performance or
conduct or at the employee's request; or
(3) The employee becomes entitled to a rate of basic pay that is
equal to or higher than the saved rate.
(g) If an employee is receiving a saved rate established under this
section on May 1, 2005 (when section 301 of Pub. L. 108-411 took
effect), any locality payment under 5 U.S.C. 5304 formerly paid in
addition to the employee's saved rate no longer applies as of that
date. Any locality-adjusted saved rate in effect and payable on April
30, 2005, must be converted to an equal saved rate effective on May 1,
2005. If the employee received no locality payment because of a pay
limitation, no conversion under this paragraph is required.
PART 362--PRESIDENTIAL MANAGEMENT INTERN PROGRAM
0
5. The authority citation for part 362 is revised to read as follows:
Authority: E.O. 12364, 47 FR 22931, 3 CFR, 1982 Comp., p. 185.
Subpart B--Program Administration
Sec. 362.202 [Amended]
0
6. In Sec. 362.202, amend paragraph (d) by removing the reference
``rules under 5 CFR 531.203(c)'' and adding in its place ``rule under 5
CFR 531.221''.
PART 451--AWARDS
0
7. The authority citation for part 451 is revised to read as follows:
Authority: 5 U.S.C. 4302, 4501-4509; E.O. 11438, 33 FR 18085, 3
CFR, 1966-1970 Comp., p. 755; E.O. 12828, 58 FR 2965, 3 CFR, 1993
Comp., p. 569.
Subpart A--Agency Awards
0
8. In Sec. 451.104, revise paragraph (g) to read as follows:
Sec. 451.104 Awards.
* * * * *
(g) When granting an award paid as a percentage of basic pay under
5 U.S.C. 4505a(a)(2)(A), the rate of basic pay used must include any
applicable locality payment under 5 CFR part 531, subpart F; special
rate supplement under 5 CFR part 530, subpart C; or similar payment or
supplement under other legal authority. For an employee receiving a
retained rate under 5 CFR part 536, subpart C (or similar authority,
such as 5 CFR 359.705), the rate of basic pay is the maximum payable
rate for the employee's grade or level, rather than the retained rate.
PART 530--PAY RATES AND SYSTEMS (GENERAL)
0
9. The authority citation for part 530 is revised to read as follows:
Authority: 5 U.S.C. 5305 and 5307; subpart C also issued under 5
U.S.C. 5338 and sec. 4 of the Performance Management and Recognition
System Termination Act of 1993, Pub. L. 103-89), 107 Stat. 981.
0
10. Revise subpart C to read as follows:
Subpart C--Special Rate Schedules for Recruitment and Retention
General Provisions
Sec.
530.301 Purpose and applicability.
530.302 Definitions.
530.303 Coverage.
530.304 Establishing or increasing special rates.
530.305 Agency requests for new or increased special rates.
530.306 Evaluating agency requests for new or increased special
rates.
530.307 OPM review and adjustment of special rate schedules.
530.308 Treatment of special rate as basic pay.
530.309 Miscellaneous provisions.
Setting an Employee's Rate of Pay
530.321 General.
530.322 Setting pay when a special rate is newly established or
increased.
530.323 Setting pay when a special rate is discontinued or
decreased.
Subpart C--Special Rate Schedules for Recruitment and Retention
General Provisions
Sec. 530.301 Purpose and applicability.
(a) Purpose. This subpart contains OPM regulations implementing 5
U.S.C. 5305, which authorizes the establishment of special rates of pay
for Federal employees in executive agencies to address significant
recruitment or retention problems. This subpart also contains rules for
determining an employee's rate of pay when a special rate schedule is
established, increased, decreased, or discontinued, or when conditions
for coverage under a special rate schedule are changed. All other pay
actions for special rate employees are governed by the pay-setting
rules in 5 CFR parts 531 and 536.
[[Page 31288]]
(b) Applicability. Except as explained in Sec. 530.303(a), this
subpart applies only to GS employees.
Sec. 530.302 Definitions.
In this subpart:
Agency means an executive agency as defined in 5 U.S.C. 105.
Authorized agency official means the head of the agency or an
official who is authorized to act for the head of the agency in the
matter concerned.
Employee has the meaning given that term in 5 U.S.C. 2105.
General Schedule or GS means the classification and pay system
established under 5 U.S.C. chapter 51 and subchapter III of chapter 53.
It also refers to the pay schedule of GS rates established under 5
U.S.C. 5332, as adjusted under 5 U.S.C. 5303 or other law (including GS
rates payable to GM employees). Law enforcement officers (LEOs)
receiving LEO special base rates are covered by the GS classification
and pay system, but receive higher base rates of pay in lieu of GS
rates at grades GS-3 through GS-10.
GM employee has the meaning given that term in 5 CFR 531.203.
GS rate means a rate of basic pay within the General Schedule,
excluding any LEO special base rate and additional pay of any kind such
as locality payments or special rate supplements. A rate payable to a
GM employee is considered a GS rate.
Highest applicable rate range means the rate range applicable to an
employee's position that provides the highest rates of basic pay,
excluding any retained rates. For example, a rate range of special
rates may exceed an applicable locality rate range. In certain
circumstances, the highest applicable rate range may consist of two
types of pay rates from different pay schedules--e.g., a range where
special rates (based on a fixed dollar supplement) are higher in the
lower portion of the range and locality rates are higher in the higher
portion of the range.
Law enforcement officer or LEO has the meaning given that term in 5
CFR 550.103.
LEO special base rate means a special base rate established for GS
law enforcement officers at grades GS-3 through GS-10 under section 403
of the Federal Employees Pay Comparability Act of 1990 (section 529 of
Pub. L. 101-509, November 5, 1990, as amended) which is used in lieu of
a GS rate.
Locality payment has the meaning given that term in 5 CFR 531.602.
Locality rate means a GS rate or an LEO special base rate, if
applicable, plus any applicable locality payment.
Official worksite means the official location of an employee's
position of record as determined under 5 CFR 531.605. Official worksite
is synonymous with the term ``official duty station'' as used in 5
U.S.C. 5305(i).
OPM means the Office of Personnel Management.
Pay schedule means a set of rate ranges established for GS
employees under a single authority--i.e., the General Schedule, an LEO
special base rate schedule (for grades GS-3 through 10), a locality
rate schedule based on GS rates, a locality rate schedule based on LEO
special base rates (for grades GS-3 through 10), a special rate
schedule under this subpart, or a similar schedule under 38 U.S.C.
7455. A pay schedule applies to or covers a defined category of
employees based on established coverage conditions (e.g., official
worksite, occupation). A pay schedule is considered to apply to or
cover an employee who meets the established coverage conditions even
when a rate under that schedule is not currently payable to the
employee because of a higher pay entitlement under another pay
schedule.
Position of record means an employee's official position (defined
by grade, occupational series, employing agency, LEO status, and any
other condition that determines coverage under a pay schedule (other
than official worksite)), as documented on the employee's most recent
Notification of Personnel Action (Standard Form 50 or equivalent) and
current position description, excluding any position to which the
employee is temporarily detailed. For an employee whose change in
official position is followed within 3 workdays by a reduction in force
resulting in the employee's separation before he or she is required to
report for duty in the new position, the position of record in effect
immediately before the position change is deemed to remain the position
of record through the date of separation.
Rate of basic pay means the rate of pay fixed by law or
administrative action for the position held by an employee before any
deductions, including a GS rate, an LEO special base rate, a locality
rate, a special rate under this subpart or a similar rate under 38
U.S.C. 7455, or a retained rate under 5 CFR 359.705 or 5 CFR part 536,
but excluding additional pay of any other kind.
Rate range or range means the range of rates of basic pay for a
grade within an established pay schedule, excluding any retained rate.
A rate range may consist of GS rates, LEO special base rates, locality
rates, special rates, or similar rates under other legal authority.
Retained rate means a rate above the maximum rate of the rate range
applicable to the employee which is payable under 5 CFR part 536 or,
for a former member of the Senior Executive Service, under 5 CFR
359.705.
Special rate means a rate of pay within a special rate schedule
established under this subpart.
Special rate schedule means a pay schedule established under this
subpart to provide higher rates of pay for specified categories of GS
positions or employees at one or more grades. An increased or decreased
special rate schedule refers to an increase or decrease in one or more
rate ranges within that schedule.
Special rate supplement means the portion of a special rate paid
above an employee's GS rate after applying any applicable pay
limitation. For a law enforcement officer receiving an LEO special base
rate who is also entitled to a special rate, a special rate supplement
increases the LEO's pay only to the extent that the resulting special
rate exceeds the LEO's rate of basic pay. The payable amount of a
special rate supplement is subject to the Executive Level IV
limitation, as provided in Sec. 530.304(a).
Sec. 530.303 Coverage.
(a) Under 5 U.S.C. 5305, OPM may establish special rates for
employees paid under a statutory pay system (as defined in 5 U.S.C.
5302(1)) or any other pay system established by or under Federal
statute for civilian positions in the executive branch. Special rates
apply only to GS employees unless the approved schedule coverage
criteria specifically state otherwise. OPM will establish special rate
schedules covering employees under a non-GS pay system only at the
request of the agency responsible for administering that system. For
employees covered by a non-GS pay system, the responsible agency is
subject to the requirements in 5 U.S.C. 5305. To the extent the
statutory or regulatory provisions governing the non-GS pay system
differ from the regulatory provisions of this subpart, the responsible
agency must follow policies that are consistent as possible with this
subpart.
(b) An employee's coverage under a special rate schedule is subject
to the coverage conditions established by OPM for that schedule, except
as provided in paragraph (c) of this section. The coverage conditions
for a special rate schedule may be based on occupation, grade,
employing agency, geographic location of official worksite, or other
[[Page 31289]]
factors OPM may determine to be appropriate. An agency determination as
to whether an employee meets the coverage conditions for a special rate
schedule must be based on the employee's position of record and
official worksite. An agency also may be required to consider other
employee-specific factors established by OPM to determine special rate
coverage, such as special qualifications or certifications.
(c) An agency must pay the applicable special rate to any employee
who meets the coverage conditions established by OPM with respect to a
special rate schedule unless an authorized agency official determines
that a category of employees of the agency will not be covered by a
proposed or existing special rate schedule, subject to the following
requirements:
(1) An authorized agency official may determine that a category of
employees of the agency will not be covered by a special rate request
or a proposed new special rate schedule. The official must provide
written notice to OPM that identifies the specific category or
categories of employees who will not be covered by the special rate
schedule. The notice must be received by OPM before the effective date
of the new special rate schedule.
(2) An authorized agency official may remove a category of
employees of the agency from coverage under an existing special rate
schedule. The official must provide written notice to OPM that
identifies the specific category or categories of employees who will
not be covered by the special rate schedule. The loss of coverage under
a special rate schedule will become effective on the first day of the
first pay period beginning on or after the date of the notice to OPM.
(d) An employee covered by a special rate schedule is not entitled
to a special rate for any purpose with respect to any period during
which the employee is entitled to a higher rate of basic pay under any
other legal authority. For example, an employee is not entitled to a
special rate if he or she is entitled to a higher locality rate or a
retained rate.
Sec. 530.304 Establishing or increasing special rates.
(a) OPM may increase the minimum rates of pay otherwise payable to
a category of employees in one or more areas or locations, grades or
levels, occupational groups, series, classes, or subdivisions thereof,
when it is necessary to address existing or likely significant
recruitment or retention difficulties. OPM will consider the
circumstances listed in paragraph (b) of this section and the factors
listed in Sec. 530.306 when evaluating the need for special rates.
When OPM establishes a minimum special rate under this authority,
corresponding increases also may be made in one or more of the
remaining rates of the affected grade or level. For any given grade, a
minimum special rate may not exceed the maximum rate of basic pay for
the rate range (excluding any locality rate, other special rate, or
similar payment under other legal authority) by more than 30 percent. A
special rate is not payable if it exceeds the rate for level IV of the
Executive Schedule.
(b) The circumstances considered by OPM in evaluating the need for
special rates are the following:
(1) Rates of pay offered by non-Federal employers which are
significantly higher than those payable by the Government within the
area, location, occupational group, or other category of positions
under GS pay system;
(2) The remoteness of the area or location involved;
(3) The undesirability of the working conditions or the nature of
the work involved (including exposure to toxic substances or other
occupational hazards); or
(4) Any other circumstances OPM considers appropriate.
(c) In setting the level of special rates within a rate range for a
category of employees, OPM will compute the special rate supplement by
adding a fixed dollar amount or a fixed percentage to all GS rates
within that range, except that an alternate method may be used for
grades GS-1 and GS-2, where within-grade increases vary throughout the
range.
(d) If OPM establishes a special rate schedule that covers only law
enforcement officers, OPM may compute the special rate supplement for
grades GS-3 through 10 as a fixed percentage of LEO special base rates
instead of GS rates. With respect to such a schedule, references to GS
rates in Sec. 530.307 are deemed to be references to LEO special base
rates.
Sec. 530.305 Agency requests for new or increased special rates.
(a) An agency may request that a special rate schedule be
established or increased or that its employees be covered by an
existing special rate schedule at any time. An authorized agency
official in the agency headquarters office must submit to OPM any
request to establish or increase special rates for a category of agency
employees. The request must include a certification by the authorized
agency official that the requested special rates are necessary to
ensure adequate staffing levels to accomplish the agency's mission.
(b) The authorized agency official is responsible for submitting
complete supporting data for any request for new or higher special
rates. OPM may require that the supporting data include a survey of
prevailing non-Federal pay rates in the relevant labor market.
(c) OPM may coordinate an agency special rate request with other
agencies that have similar categories of employees. OPM may designate a
lead agency to assist in coordinating the collection of relevant data.
Each affected agency is responsible for submitting complete supporting
data upon request to OPM or the lead agency, as appropriate, unless the
agency determines that a category of its employees will not be covered
by the proposed special rate schedule, as provided in Sec. 530.303(c).
Sec. 530.306 Evaluating agency requests for new or increased special
rates.
(a) In evaluating agency requests for new or increased special
rates, OPM may consider the following factors:
(1) The number of existing vacant positions and the length of time
they have been vacant;
(2) The number of employees who have quit (i.e., voluntarily left
Federal service), including, when available, a subcount of the number
of employees who quit to take a comparable position offering higher
pay;
(3) Evidence to support a conclusion that recruitment or retention
problems likely will develop (if such problems do not already exist) or
will worsen;
(4) The number of vacancies an agency tried to fill, compared to
the number of hires and offers made;
(5) The nature of the existing labor market;
(6) The degree to which an agency has considered and used other
available pay flexibilities to alleviate staffing problems, including
the superior qualifications and special needs pay-setting authority in
5 CFR 531.212 and recruitment, relocation, and retention incentives
under 5 CFR part 575;
(7) The degree to which an agency has considered relevant non-pay
solutions to staffing problems, such as conducting an aggressive
recruiting program, using appropriate appointment authorities,
redesigning jobs, establishing training programs, and improving working
conditions;
(8) The effect of the staffing problem on the agency's mission; and
(9) The level of non-Federal rates paid for comparable positions.
Data on non-Federal salary rates may be
[[Page 31290]]
supplemented, if appropriate, by data on Federal salary rates for
comparable positions established under a non-GS pay system.
(b) In determining the level at which to set special rates, OPM may
consider the following factors:
(1) The pay levels that, in OPM's judgment, are necessary to
recruit or retain an adequate number of qualified employees based on
OPM's findings with respect to the factors set forth in paragraph (a)
of this section;
(2) The dollar costs that will be incurred if special rates are not
authorized;
(3) The level of pay for comparable positions; and
(4) The need to provide for a reasonable progression in pay from
lower grade levels to higher grade levels to avoid pay alignment
problems (e.g., such as might result from applying the two-step
promotion rule in 5 U.S.C. 5334(b)).
(c) No one factor or combination of factors specified in paragraph
(a) or (b) of this section requires OPM to establish or increase
special rates or to set special rates at any given level.
Sec. 530.307 OPM review and adjustment of special rate schedules.
(a) OPM may review an established special rate schedule at any time
to determine whether that schedule should be increased, decreased, or
discontinued, taking into account the circumstances listed in Sec.
530.304(b) and the factors listed in Sec. 530.306 that led to
establishing the schedule. An authorized agency official may request
that OPM conduct such a review of one or more special rate schedules.
(b) OPM may designate lead agencies to assist in the review of
designated special rate schedules and to coordinate the collection of
relevant data. Each affected agency is responsible for submitting
complete supporting data upon request to OPM or the lead agency, as
appropriate.
(c) OPM will adjust a special rate schedule by determining the
amount of the special rate supplement to be paid on top of the current
GS rate for each rate range within the schedule. OPM will determine the
extent to which special rate supplements are to be adjusted (increased
or decreased), if at all, and when the special rate supplements are to
be adjusted. As provided in 5 U.S.C. 5305(d), special rate schedule
adjustments made by OPM have the force and effect of statute.
(d)(1) For special rate schedules computed by applying a fixed-
percentage supplement on top of each GS rate within a rate range, OPM
may require that a change in the underlying GS rate automatically
results in an adjusted special rate schedule, unless OPM determines
that an adjustment in the supplement percentage is appropriate for one
or more special rate schedules.
(2) For special rate schedules computed by applying a fixed-dollar
supplement on top of each GS rate within a rate range, OPM may require
that special rate supplements generally be adjusted to reflect the
increase in GS rates, unless OPM determines that a different adjustment
is appropriate for one or more special rate schedules.
(e) If OPM determines that a special rate schedule, or a rate range
within a special rate schedule, is no longer needed to ensure
satisfactory recruitment or retention of qualified employees, OPM may
discontinue the schedule or rate range. Consistent with Sec.
530.303(d), if all employees and positions covered by a special rate
schedule or rate range are entitled to a higher rate of basic pay, the
schedule or rate range (as applicable) will be automatically
discontinued.
(f) OPM may change the established conditions for coverage under a
special rate schedule at any time based on a reevaluation of the
circumstances and factors that led to establishing the schedule.
Expansion of coverage is equivalent to establishing a special rate
schedule for a category of affected employees. Reduction of coverage is
the equivalent of discontinuing a special rate schedule for a category
of affected employees.
(g) When a special rate schedule is adjusted or discontinued, or
when there is a change in a schedule's coverage criteria, the rate of
pay for affected employees must be set as provided in Sec. Sec.
530.321 through 530.323.
Sec. 530.308 Treatment of special rate as basic pay.
Except as otherwise specifically provided under other legal
authority, a special rate is considered a rate of basic pay only for
the following purposes:
(a) The purposes for which a locality rate is considered to be a
rate of basic pay in computing other payments or benefits, to the
extent provided by 5 CFR 531.610, except as otherwise provided in
paragraphs (b) through (d) of this section;
(b) Computation of nonforeign area cost-of-living allowances and
post differentials under 5 U.S.C. 5941 and 5 CFR part 591, subpart B;
(c) Computation of foreign area post differentials under 5 U.S.C.
5925(a) and danger pay allowances under 5 U.S.C. 5928; and
(d) Application of pay administration provisions for prevailing
rate employees which consider rates of basic pay under the GS pay
system in setting pay (except as otherwise provided in 5 CFR part 532),
subject to the requirement that, if the employee's actual special rate
would not apply at the official worksite for the prevailing rate
position, a special rate may be used only if it is a corresponding
special rate on a special rate schedule that would cover the employee
if his or her GS position of record were located at the same official
worksite as the prevailing rate position, consistent with the
geographic conversion rule in 5 CFR 531.205.
Sec. 530.309 Miscellaneous provisions.
(a) A special rate may be paid only for those hours for which an
employee is in a pay status.
(b) A pay increase caused by an employee becoming entitled to a new
or higher special rate supplement is not an equivalent increase in pay
within the meaning of 5 U.S.C. 5335. (See 5 CFR 531.407(c).)
(c) A special rate is included in an employee's total remuneration,
as defined in 5 CFR 551.511(b), and straight time rate of pay, as
defined in 5 CFR 551.512(b), for the purpose of overtime pay
computations under the Fair Labor Standards Act of 1938, as amended.
(d) The reduction or termination of an employee's special rate
supplement in accordance with the requirements of this subpart is not
an adverse action under 5 CFR part 752, subpart D, or an action under 5
CFR 930.214.
Setting an Employee's Rate of Pay
Sec. 530.321 General.
(a) This section and Sec. Sec. 530.322 and 530.323 provide
conversion rules for setting an employee's pay when a special rate
schedule is established, increased, decreased, or discontinued, or when
an employee's coverage under an existing special rate schedule is
affected by a change in coverage criteria. These conversion rules do
not apply to changes in an employee's special rate entitlements based
on a change in the employee's position of record or official worksite.
Pay-setting rules for other personnel actions affecting special rate
employees are provided in 5 CFR parts 531 and 536. For example, if an
employee becomes covered by a special rate schedule as a result of a
change in the employee's official worksite, the geographic conversion
rule in 5 CFR 531.205 must be used to set the employee's rate(s) of
basic pay in the new location before considering any
[[Page 31291]]
other simultaneous pay action (other than a general pay adjustment).
(b) The conversion rules in Sec. Sec. 530.322 and 530.323 are
considered general pay adjustments for the purpose of applying 5 CFR
531.206 (dealing with the order of precedence for processing
simultaneous pay actions). The rate(s) of pay resulting from these
conversion rules are considered the employee's existing rate(s) of pay
before processing the next simultaneous pay action in the order of
precedence.
Sec. 530.322 Setting pay when a special rate schedule is newly
established or increased.
(a) General rule. When an employee holds a position that becomes
covered by a newly established special rate schedule (including a
schedule for which coverage is expanded) or increased special rate
schedule (including an increased special rate range within a schedule),
the agency must set the employee's rate of pay at the step or rate of
the grade on the new special rate schedule that corresponds to the
employee's existing numerical step or rate (as in effect immediately
before the new special rate schedule takes effect), except as otherwise
provided in this section. The corresponding special rate is determined
by adding the applicable special rate supplement on top of the
employee's GS rate, subject to the limitation that no special rate may
exceed the rate for level IV of the Executive Schedule. For an employee
receiving an LEO special base rate, add the applicable special rate
supplement to the GS rate for the employee's grade and step, except as
otherwise provided under Sec. 530.304(d).
(b) Employee entitled to a higher rate of basic pay. As provided in
Sec. 530.303(d), if an employee meeting the coverage conditions for a
newly established or increased special rate schedule is entitled to a
higher rate of basic pay under other legal authority, the employee must
be paid at that higher rate.
(c) Employee receiving a retained rate. When an employee is
receiving a retained rate immediately before the employee's position is
covered by a newly established or increased special rate schedule, the
agency must determine the employee's rate of pay consistent with the
requirements in 5 CFR part 536, subpart C (or 5 CFR 359.705 for a
former member of the Senior Executive Service receiving a retained rate
under that section).
Sec. 530.323 Setting pay when a special rate is discontinued or
decreased.
(a) General. This section applies when a special rate applicable to
a position is discontinued or decreased because of--
(1) A reduction or termination of the rates of the special rate
schedule (or of rates of a rate range within a schedule); or
(2) The reduction in the scope of coverage of the special rate
schedule.
(b) Employee entitled to pay retention. When a special rate
applicable to a position is discontinued or decreased, and an employee
holding the position is entitled to pay retention under 5 CFR part 536
as a result, the employee's rate of pay must be set consistent with the
requirements in 5 CFR part 536, subpart C.
(c) Employee not entitled to pay retention. When a special rate
applicable to a position is discontinued or decreased, and an employee
holding the position is not entitled to pay retention under 5 CFR part
536, the employee's rate of pay is set in the highest applicable rate
range at the grade and step (or rate) that corresponds to the grade and
step (or rate) for the employee's existing special rate (as in effect
immediately before the schedule change).
(d) Employee receiving a retained rate. When a special rate
applicable to a position is discontinued or decreased, and the employee
holding the position is receiving a retained rate immediately before
the schedule change, the employee's rate of pay must be set consistent
with the requirements in 5 CFR part 536, subpart C (or 5 CFR 359.705
for a former member of the Senior Executive Service receiving a
retained rate under that section).
PART 531--PAY UNDER THE GENERAL SCHEDULE
0
11. The authority citation for part 531 is revised to read as follows:
Authority: 5 U.S.C. 5115, 5307, and 5338; sec. 4 of Pub. L. 103-
89, 107 Stat. 981; and E.O. 12748, 56 FR 4521, 3 CFR, 1991 Comp., p.
316; Subpart B also issued under 5 U.S.C. 5303(g), 5305, 5333,
5334(a) and (b), and 7701(b)(2); Subpart D also issued under 5
U.S.C. 5335(g) and 7701(b)(2); Subpart E also issued under 5 U.S.C.
5336; Subpart F also issued under 5 U.S.C. 5304, 5305, and 5338; and
E.O. 12883, 58 FR 63281, 3 CFR, 1993 Comp., p. 682 and E.O. 13106,
63 FR 68151, 3 CFR, 1998 Comp., p. 224.
0
12. Revise subpart B to read as follows:
Subpart B--Determining Rate of Basic Pay
General Provisions
Sec.
531.201 Purpose.
531.202 Coverage.
531.203 Definitions.
531.204 Entitlement to other rates of pay.
531.205 Converting pay upon change in location of employee's
official worksite.
531.206 Order of processing simultaneous pay actions.
531.207 Applying annual pay adjustments.
Setting Pay When Appointment or Position Changes
531.211 Setting pay for a newly appointed employee.
531.212 Superior qualifications and special needs pay-setting
authority.
531.213 Setting pay upon change in position without a change in
grade.
531.214 Setting pay upon promotion.
531.215 Setting pay upon demotion.
531.216 Setting pay when an employee moves from a Department of
Defense or Coast Guard nonappropriated fund instrumentality.
531.217 Special conversion rules for certain non-GS employees.
Using a Highest Previous Rate Under the Maximum Payable Rate Rule
531.221 Maximum payable rate rule.
531.222 Rates of basic pay that may be used as the highest previous
rate.
531.223 Rates of basic pay that may not be used as the highest
previous rate.
Special Rules for GM Employees
531.241 Retaining and losing GM status.
531.242 Setting pay upon loss of GM status.
531.243 Promotion of a GM employee.
531.244 Adjusting a GM employee's rate at the time of an annual pay
adjustment.
531.245 Computing locality rates and special rates for GM employees.
531.246 Within-grade increases for GM employees.
531.247 Maximum payable rate rule for GM employees.
Subpart B--Determining Rate of Basic Pay
General Provisions
Sec. 531.201 Purpose.
This subpart contains regulations of the Office of Personnel
Management (OPM) implementing 5 U.S.C 5332, 5333, and 5334, which deal
with setting and adjusting rates of basic pay for General Schedule (GS)
employees. These regulations are supplemented by regulations on GS
within-grade increases in subpart D of this part; GS quality step
increases in subpart E of this part; locality rates in subpart F of
this part; special rates in 5 CFR part 530, subpart C; and grade and
pay retention in 5 CFR part 536.
Sec. 531.202 Coverage.
This subpart covers employees who occupy positions classified and
paid under the GS classification and pay system, as provided in 5
U.S.C. 5102 and 5331 or other applicable laws. Law
[[Page 31292]]
enforcement officers (LEOs) receiving LEO special base rates are
covered by the GS classification and pay system, but receive higher
base rates of pay in lieu of GS rates at grades GS-3 through GS-10.
This subpart also covers GS employees who receive special rates under 5
U.S.C. 5305 and 5 CFR part 530, subpart C.
Sec. 531.203 Definitions.
In this subpart:
Agency means an Executive agency as defined in 5 U.S.C. 105 or an
agency in the legislative branch with employees covered by this
subpart. To the extent that the regulations in this subpart relate to
non-GS service in the Federal Government, agency includes any other
agency in the Federal Government.
Demotion means a change of an employee, while continuously
employed, from one GS grade to a lower GS grade, with or without a
reduction in pay.
Employee means an employee as defined in 5 U.S.C. 2105 who is
covered by this subpart. For the purpose of determining eligibility
under the superior qualifications and special needs pay-setting
authority in Sec. 531.212 and applying the maximum payable rate
provisions in Sec. Sec. 531.216 and 531.221 (which consider rates of
pay received during non-GS service in the Federal Government), employee
also includes any employee as defined in 5 U.S.C. 2105 and--
(1) An individual employed by the U.S. Postal Service or the Postal
Rate Commission who would be considered an employee under 5 U.S.C. 2105
but for the exclusion in section 2105(e); and
(2) An individual employed by a Department of Defense or Coast
Guard nonappropriated fund instrumentality (as described in 5 U.S.C.
2105(c)) for service covered by Sec. 531.216 (for the purpose of
applying that section and Sec. Sec. 531.211 and 531.212).
Existing rate means the rate received immediately before a pay
action takes effect, after processing a general pay adjustment and any
other simultaneous pay action that is higher in the order of precedence
under Sec. 531.206. For example, the existing rate immediately before
a promotion action must reflect any geographic conversion under Sec.
531.205 and any simultaneous within-grade increase or quality step
increase.
Federal Government means all entities of the Government of the
United States, including the U.S. Postal Service and the Postal Rate
Commission. The District of Columbia is deemed to be part of the
Federal Government with respect to employees of the government of the
District of Columbia (DC) who were first employed by that government
before October 1, 1987. A Department of Defense or Coast Guard
nonappropriated fund instrumentality (as described in 5 U.S.C. 2105(c))
is not considered part of the Federal Government except for the purpose
of applying Sec. Sec. 531.211 and 531.212 to employees covered by
Sec. 531.216 upon employment in a GS position.
General Schedule or GS means the classification and pay system
established under 5 U.S.C. chapter 51 and subchapter III of chapter 53.
It also refers to the pay schedule of GS rates established under 5
U.S.C. 5332, as adjusted under 5 U.S.C. 5303 or other law (including GS
rates payable to GM employees). Law enforcement officers (LEOs)
receiving LEO special base rates are covered by the GS classification
and pay system but receive higher base rates of pay in lieu of GS rates
at grades GS-3 through GS-10.
GM employee means a GS employee who was formerly covered by the
Performance Management and Recognition System under 5 U.S.C. chapter 54
on October 31, 1993 (and therefore became covered on November 1, 1993,
by section 4 of Pub. L. 103-89, the Performance Management and
Recognition System Termination Act of 1993), and who continues
thereafter to occupy a position as a supervisor or management official
(as defined in 5 U.S.C. 7103(a)(10) and (11)) in the same grade of the
General Schedule (GS-13, 14, or 15) and in the same agency without a
break in service of more than 3 days. (See Sec. 531.241.) Any
reference to employees, grades, positions, or rates of basic pay under
the General Schedule includes GM employees.
GS rate means a rate of basic pay within the General Schedule,
excluding any LEO special base rate and additional pay of any kind such
as locality payments or special rate supplements. A rate payable to a
GM employee is considered a GS rate even though the rate may fall
between GS step rates.
Highest applicable rate range means the rate range applicable to a
GS employee based on a given position of record and official worksite
that provides the highest rates of basic pay, excluding any retained
rates. For example, a rate range of special rates may exceed an
applicable locality rate range. In certain circumstances, the highest
applicable rate range may consist of two types of pay rates from
different pay schedules--e.g., a range where special rates (based on a
fixed dollar supplement) are higher in the lower portion of the range
and locality rates are higher in the higher portion of the range.
Law enforcement officer or LEO has the meaning given that term in 5
CFR 550.103.
LEO special base rate means a special base rate established for GS
law enforcement officers at grades GS-3 through GS-10 under section 403
of the Federal Employees Pay Comparability Act of 1990 (section 529 of
Pub. L. 101-509, November 5, 1990, as amended) which is used in lieu of
a GS rate.
Locality payment means a locality-based comparability payment
payable to GS employees under 5 U.S.C. 5304 and 5 CFR part 531, subpart
F.
Locality rate means a GS rate or an LEO special base rate, if
applicable, plus any applicable locality payment.
Official worksite means the official location of the employee's
position of record, as determined under 5 CFR 531.605.
OPM means the Office of Personnel Management.
Payable rate means the highest rate of basic pay to which an
employee is entitled based on the employee's position of record,
official worksite, and step (or relative position in range for a GM
employee) or, if applicable, a retained rate.
Pay schedule means a set of rate ranges established for GS
employees under a single authority--i.e., the General Schedule, an LEO
special base rate schedule (for grades GS-3 through 10), a locality
rate schedule based on GS rates, a locality rate schedule based on LEO
special base rates (for grades GS-3 through 10), or a special rate
schedule. A pay schedule applies to or covers a defined category of
employees based on established coverage conditions (e.g., official
worksite, occupation). A pay schedule is considered to apply to or
cover an employee who meets the established coverage conditions even
when a rate under that schedule is not currently payable to the
employee because of a higher pay entitlement under another pay
schedule.
Position of record means an employee's official position (defined
by grade, occupational series, employing agency, LEO status, and any
other condition that determines coverage under a pay schedule (other
than official worksite)), as documented on the employee's most recent
Notification of Personnel Action (Standard Form 50 or equivalent) and
current position description, excluding any position to which the
employee is temporarily detailed. For an employee whose change in
official position is followed within 3 workdays by a reduction in force
resulting in the employee's separation
[[Page 31293]]
before he or she is required to report for duty in the new position,
the position of record in effect immediately before the position change
is deemed to remain the position of record through the date of
separation.
Promotion means a GS employee's movement from one GS grade to a
higher GS grade while continuously employed (including such a movement
in conjunction with a transfer).
Rate of basic pay means the rate of pay fixed by law or
administrative action for the position held by a GS employee before any
deductions, including a GS rate, an LEO special base rate, a special
rate, a locality rate, a retained rate, but exclusive of additional pay
of any other kind. For the purpose of applying the maximum payable rate
rules in Sec. Sec. 531.216 and 531.221 to non-GS employees, rate of
basic pay means a rate of pay under other legal authority which is
equivalent to a rate of basic pay for GS employees, as described in
this definition.
Rate range or range means a range of rates of basic pay for a grade
within an established pay schedule, excluding any retained rate. A rate
range may consist of GS rates, LEO special base rates, locality rates,
special rates, or, for non-GS employees, similar rates under other
legal authority.
Reassignment means a change of an employee, while serving
continuously in the same agency, from one position to another without
promotion or demotion.
Reemployment means employment, including reinstatement or another
type of appointment, after a break in service of at least 1 full
workday.
Retained rate means a rate above the maximum rate of the rate range
applicable to a GS employee which is payable under 5 CFR part 536 or,
for a former member of the Senior Executive Service, under 5 CFR
359.705.
Special rate means a rate of pay within a special rate schedule
established under 5 CFR part 530, subpart C, or a similar rate for GS
employees established under other legal authority (e.g., 38 U.S.C.
7455). The term special rate does not include an LEO special base rate.
Special rate schedule means a pay schedule established under 5 CFR
part 530, subpart C, to provide higher rates of pay for specified
categories of GS positions or employees at one or more grades or levels
or a similar schedule established for GS employees under other legal
authority (e.g., 38 U.S.C. 7455).
Special rate supplement means the portion of a special rate paid
above an employee's GS rate after applying any applicable pay
limitation. For a law enforcement officer receiving an LEO special base
rate who is also entitled to a special rate under 5 CFR part 530,
subpart C, the special rate supplement increases the LEO's pay only to
the extent that the resulting special rate exceeds the LEO's rate of
basic pay.
Temporary promotion means a time-limited promotion with a not-to-
exceed date or a specified term.
Transfer means a change of an employee, without a break in service
of 1 full workday, from one branch of the Federal Government
(executive, legislative, or judicial) to another or from one agency to
another.
Where different pay schedules apply means, in the context of
applying the geographic conversion rule, that an employee's official
worksite is changed to a new location that would cause the employee to
lose or gain coverage under a location-based pay schedule (i.e.,
locality rate schedule or special rate schedule) if the employee were
to remain in the same position of record.
Within-grade increase has the meaning given that term in Sec.
531.403.
Sec. 531.204 Entitlement to other rates of pay.
(a) A law enforcement officer is entitled to LEO special base rates
in lieu of GS rates at grades GS-3 through GS-10. A law enforcement
officer is entitled to the LEO special base rate that corresponds to
his or her grade and step. If an employee loses LEO status, the
employee is entitled to the GS rate for his or her grade and step
unless a higher rate is set under the maximum payable rate rule in
Sec. 531.221 or under the pay retention rules in 5 CFR part 536, as
applicable. LEO special base rates are used in computing locality
rates, as provided in subpart F of this part. A law enforcement officer
may be entitled to a special rate that is computed using the underlying
GS rate for the LEO's grade and step.
(b) When an employee's GS rate or LEO special base rate is
determined under the rules of this subpart, the agency must determine
any other rate of basic pay to which the employee is entitled,
including a locality rate under subpart F of this part and a special
rate under 5 CFR part 530, subpart C, or other legal authority (e.g.,
38 U.S.C. 7455). The employee is entitled to the highest applicable
rate of basic pay as his or her payable rate. When an employee's
special rate is surpassed by a higher locality rate, his or her
entitlement to a special rate is terminated, as provided in Sec.
530.303(d).
(c) When application of the rules in this subpart results in
setting an employee's payable rate in the highest applicable pay
schedule (e.g., a locality rate schedule or a special rate schedule),
the agency must determine the employee's underlying GS rate or LEO
special base rate, as applicable, based on that payable rate (i.e., by
finding the corresponding underlying rate with the same grade and step
(or relative position) as the payable rate).
Sec. 531.205 Converting pay upon change in location of employee's
official worksite.
When an employee's official worksite is changed to a new location
where different pay schedules apply, the agency must convert the
employee's rate(s) of basic pay to the applicable pay schedule(s) in
the new location before processing any simultaneous pay action (other
than a general pay adjustment, as provided in Sec. 531.206). The
agency must first set the employee's rate(s) of basic pay in the
applicable pay schedule(s) in the new location based on his or her
position of record (including grade) and step (or rate) immediately
before the change in the employee's official worksite. The resulting
rate must be used as the existing rate in processing the next
simultaneous pay action in the order of precedence, using the
applicable pay schedules in the new location. In conjunction with any
simultaneous pay actions, the employee's rate(s) of basic pay will then
be set based on the employee's new position of record and new official
worksite.
Sec. 531.206 Order of processing simultaneous pay actions.
When multiple pay actions with the same effective date affect an
employee's rate of basic pay, the actions will be processed in the
following order:
(a) Process general pay adjustments before any individual pay
action that takes effect at the same time. General pay adjustments
include an annual adjustment in the General Schedule under 5 U.S.C.
5303; an adjustment in LEO special base rates; an adjustment of a
locality pay percentage under subpart F of this part; the establishment
or adjustment of a special rate schedule under 5 CFR part 530, subpart
C, or similar legal authority (e.g., 38 U.S.C. 7455); and an adjustment
of a retained rate under 5 CFR 359.705(d)(1) and 536.305(a)(1) based on
the establishment or adjustment of a pay schedule.
(b) Convert the employee's rate(s) of pay to reflect any change in
the location of the employee's official worksite, as prescribed in
Sec. 531.205 (or similar geographic conversion provision).
[[Page 31294]]
(c) Process any within-grade increase or quality step increase to
which the employee is entitled.
(d) Process any promotion action using the rates of pay and rate
ranges in the sequence prescribed in Sec. 531.214.
(e) Except as otherwise provided in paragraphs (a) through (d) of
this section or other regulation, process individual pay actions that
take effect at the same time in the order that gives the employee the
maximum benefit.
Sec. 531.207 Applying annual pay adjustments.
(a) Except as otherwise provided in this section, on the effective
date of a GS pay adjustment under 5 U.S.C. 5303 or similar authority,
an agency initially must set the GS rate of a GS employee at the new
rate of the adjusted General Schedule corresponding to the employee's
grade and step in effect immediately before the effective date of the
pay adjustment. Any simultaneous pay actions must be processed after
the pay adjustment, as provided in Sec. 531.206.
(b) For employees receiving a retained rate immediately before the
effective date of a GS annual pay adjustment, the agency must adjust
the employee's rate of basic pay under the rules in 5 CFR 536.305 (or
under 5 CFR 359.705 for former members of the Senior Executive Service
receiving a retained rate under that section).
(c) For GM employees, the agency must follow the rules in Sec.
531.244.
Setting Pay When Appointment or Position Changes
Sec. 531.211 Setting pay for a newly appointed employee.
(a) First appointment. An agency must set the payable rate of basic
pay for an employee receiving his or her first appointment (regardless
of tenure) as a civilian employee of the Federal Government at the
minimum rate of the highest applicable rate range for the employee's
position of record, except as provided in Sec. 531.212.
(b) Reemployment. For an employee who has previous civilian service
in the Federal Government, an agency must set the payable rate of basic
pay upon reemployment at the minimum rate of the highest applicable
rate range for the employee's position of record unless--
(1) The employee meets the conditions in Sec. 531.212 and an
agency determines it is appropriate to set pay under that section; or
(2) The employee is eligible for a higher payable rate under the
maximum payable rate rule in Sec. 531.221 and the agency chooses to
apply that rule.
Sec. 531.212 Superior qualifications and special needs pay-setting
authority.
(a) Agency authority. (1) An agency may use the superior
qualifications and special needs pay-setting authority in 5 U.S.C. 5333
to set the payable rate of basic pay for an employee above the minimum
rate of the highest applicable rate range for the employee's position
of record. The superior qualifications and special needs pay-setting
authority may be used for--
(i) A first appointment (regardless of tenure) as a civilian
employee of the Federal Government; or
(ii) A reappointment that is considered a new appointment under 5
U.S.C. 5333 because it meets the conditions prescribed in paragraph
(a)(2) and (3) of this section.
(2) An agency may use the superior qualifications and special needs
pay-setting authority for a reappointment only when the employee has
had a break in service of at least 90 days from the last period of
civilian employment with the Federal Government, except as provided in
paragraph (a)(3) of this section.
(3) An agency may use the superior qualifications and special needs
pay-setting authority for a reappointment without requiring a 90-day
break in service if the candidate's civilian employment with the
Federal Government during the 90-day period immediately preceding the
appointment was limited to one or more of the following:
(i) Employment under a time-limited or non-permanent appointment in
the competitive or excepted service;
(ii) Employment under an appointment as an expert or consultant
under 5 U.S.C. 3109 and 5 CFR part 304; or
(iii) Employment under a provisional appointment designated under 5
CFR 316.403.
(4) Service as an employee of a nonappropriated fund
instrumentality (NAFI) of the Department of Defense or Coast Guard is
not considered employment by the Federal Government under this section
except for employees covered by Sec. 531.216 upon appointment or
reappointment (i.e., employees who move from NAFI position to GS
position with a break in service of 3 days or less and without a change
in agency). Employees covered by Sec. 531.216 upon appointment or
reappointment to a GS position are not eligible to have pay set under
the superior qualifications or special needs authority, since their
NAFI employment is considered employment by the Federal Government.
Otherwise, NAFI employment does not block application of this section.
(b) Superior qualifications or special needs determination. An
agency may set the payable rate of basic pay of a newly appointed
employee above the minimum rate of the grade under this section if the
candidate meets one of the following criteria:
(1) The candidate has superior qualifications. An agency may
determine that a candidate has superior qualifications based on the
level, type, or quality of the candidate's skills or competencies
demonstrated or obtained through experience and/or education, the
quality of the candidate's accomplishments compared to others in the
field, or other factors that support a superior qualifications
determination. The candidate's skills, competencies, experience,
education, and/or accomplishments must be relevant to the requirements
of the position to be filled. These qualities must be significantly
higher than that needed to be minimally required for the position and/
or be of a more specialized quality compared to other candidates; or
(2) The candidate fills a special agency need. An agency may
determine that a candidate fills a special agency need if the type,
level, or quality of skills and competencies or other qualities and
experiences possessed by the candidate are relevant to the requirements
of the position and are essential to accomplishing an important agency
mission, goal, or program activity. A candidate also may meet the
special needs criteria by meeting agency workforce needs, as documented
in the agency's strategic human capital plan.
(c) Pay rate determination. An agency may consider one or more of
the following factors, as applicable in the case at hand, to determine
the step at which to set an employee's payable rate of basic pay using
the superior qualifications and special needs pay-setting authority:
(1) The level, type, or quality of the candidate's skills or
competencies;
(2) The candidate's existing salary, recent salary history, or
salary documented in a competing job offer (taking into account the
location where the salary was or would be earned and comparing the
salary to payable rates of basic pay in the same location);
(3) Significant disparities between Federal and non-Federal
salaries for the skills and competencies required in the position to be
filled;
(4) Existing labor market conditions and employment trends,
including the availability and quality of candidates for the same or
similar positions;
[[Page 31295]]
(5) The success of recent efforts to recruit candidates for the
same or similar positions;
(6) Recent turnover in the same or similar positions;
(7) The importance/criticality of the position to be filled and the
effect on the agency if it is not filled or if there is a delay in
filling it;
(8) The desirability of the geographic location, duties, and/or
work environment associated with the position;
(9) Agency workforce needs, as documented in the agency's strategic
human capital plan; or
(10) Other relevant factors.
(d) Consideration of recruitment incentive. In determining whether
to use the superior qualifications and special needs pay-setting
authority and the level at which the employee's payable rate of basic
pay should be set, an agency must consider the possibility of
authorizing a recruitment incentive under 5 CFR part 575, subpart A.
(e) Approval and documentation requirements. (1) An agency must
approve each determination to use the superior qualifications and
special needs pay-setting authority prior to the candidate entering on
duty. Each determination must be made in writing and reviewed and
approved by an official of the agency who is at least one level higher
than the employee's supervisor, unless there is no official at a higher
level in the agency.
(2) An agency must document all of the following for each
determination to use the superior qualifications and special needs pay-
setting authority sufficient to allow reconstruction of the action
taken in each case:
(i) The superior qualifications of the candidate under paragraph
(b)(1) of this section or the special agency need for the candidate's
services under paragraph (b)(2) of this section which justifies a
higher than minimum rate;
(ii) An explanation of the factor(s) and supporting documentation
under paragraph (c) of this section which were used to justify the rate
at which the employee's pay is set. The written documentation must
explain how the factors directly relate to the rate approved; and
(iii) The reasons for authorizing a higher than minimum rate
instead of or in addition to a recruitment incentive under 5 CFR part
575, subpart A.
(f) Ensuring compliance. An agency must establish appropriate
internal guidelines and evaluation procedures to ensure compliance with
the law, this section of OPM regulations, and agency policies.
Sec. 531.213 Setting pay upon change in position without a change in
grade.
For an employee who is moved laterally (by transfer, reassignment,
change in type of appointment, change in official worksite, or other
change in position) from one GS position to a different GS position
without a change in grade or a break in service, the agency must
determine the employee's payable rate of basic pay and any underlying
rate(s)s of basic pay based on the employee's new position of record,
new official worksite, and the step (or rate) in effect before the
position change. If an employee is eligible to receive a higher rate
under the maximum payable rate rule in Sec. 531.221, the agency may
choose to apply that rule. If an employee is entitled to pay retention,
the agency must apply the rules in 5 CFR part 536.
Sec. 531.214 Setting pay upon promotion.
(a) General. An agency must set an employee's payable rate of basic
pay upon promotion following the rules in this section, consistent with
5 U.S.C. 5334(b). The promotion rule in 5 U.S.C. 5334(b) and the
implementing rules in this section apply only to a GS employee who is
promoted from one GS grade to a higher GS grade. Consistent with Sec.
531.206, any general pay adjustment that takes effect on the same day
as a promotion action must be processed before applying the rules in
this section.
(b) Geographic conversion. When an employee's official worksite is
changed to a new location where different pay schedules apply, the
agency must convert the employee to the applicable pay schedule(s) and
rate(s) of basic pay for the new official worksite based on the
employee's position of record before promotion as provided in Sec.
531.205 before processing a simultaneous promotion action.
(c) Simultaneous within-grade increase. When an employee is
entitled to a within-grade increase or a quality step increase that is
effective at the same time as a promotion, the agency must process that
increase before processing the promotion action.
(d) Promotion rule. (1) General. An agency must determine an
employee's payable rate of basic pay upon promotion using the standard
method in paragraph (d)(3) of this section or the alternate method in
paragraph (d)(4) of this section, subject to the special rule in
paragraph (d)(5) of this section for employees receiving a retained
rate before promotion. A determination regarding whether the alternate
method is used in place of the standard method depends on the pay
schedules that apply to an employee before and after promotion, as
provided in paragraph (d)(2) of this section. In this paragraph (d),
references to an employee's rate or range ``before promotion'' mean the
rate or range before promotion but after any geographic conversion
required by paragraph (b) of this section.
(2) Determining applicable method. The following rules govern
determinations regarding which promotion method to use:
(i) Apply the standard method exclusively if the employee is
covered by the same pay schedules before and after promotion. For
example, an employee may be covered by the General Schedule and the
same locality rate schedule before and after promotion.
(ii) Apply the alternate method if the employee is covered by
different pay schedules before and after promotion and if the alternate
method will produce a higher payable rate upon promotion than the
standard method. For example, an employee may be covered after
promotion by a special rate schedule that did not apply to him or her
before promotion, and the alternate method will produce a higher rate.
(iii) Apply the standard method in all other circumstances, except
that an agency may, at its sole and exclusive discretion, apply the
alternate method for an employee covered by different pay schedules
before and after promotion even though the method produces a lesser
payable rate than the standard method, but only under the following
conditions:
(A) The agency determines it would be inappropriate to use the
alternate method based on a finding that the higher pay for the
position before promotion is not sufficiently related to the knowledge
and skills required for the position after promotion; and
(B) The agency informs the employee of the determination to use the
alternate method before the effective date of the promotion.
(3) Standard method. (i) The standard method of applying the
promotion rule is presented in the following table:
Promotion Rule--Standard Method
Step A--If applicable, apply the geographic conversion rule in
Sec. 531.205 to determine the employee's rate(s) and range(s) of
basic pay based on the employee's position of record before
promotion and the new official worksite, as required by paragraph
(b) of this section. Also, if applicable, provide any simultaneous
within-grade increase or quality step increase, as required by
paragraph (c) of this section. Use the resulting rate(s) of basic
pay as the existing rate(s) in effect immediately before promotion
in applying steps B and C.
[[Page 31296]]
Step B--Identify the employee's existing GS rate (or LEO special
base rate) in the grade before promotion, and increase that rate by
two GS within-grade increases for that grade.
Step C--Determine the payable (highest) rate of basic pay for
the step or rate determined in step B by applying any locality
payment or special rate supplement applicable to the given grade,
based on the employee's position of record before promotion and
official worksite after promotion. (If the rate determined in step B
is above the range maximum, use the same locality payment or special
rate supplement that applies to rates within the rate range.)
Step D--Identify the highest applicable rate range for the
employee's position of record after promotion and find the lowest
step rate in that range that equals or exceeds the rate determined
in step C. This is the employee's payable rate of basic pay upon
promotion. (If the rate identified in step C exceeds the maximum of
the rate range identified in this step, the employee's payable rate
is that maximum rate, or, if the employee's existing rate is higher
than that maximum rate, a retained rate under 5 CFR part 536 equal
to that existing rate.)
(ii) Example of standard method: A GS-11, step 5, employee in Los
Angeles is promoted to a GS-12 position in Kansas City. In Kansas City,
a special rate schedule would apply to the employee's GS-11 position,
but at GS-12 no special rate range applies; instead, just a locality
rate range applies. Thus, different pay schedules apply to the employee
in Kansas City before and after promotion. The agency determines that
the standard method produces a higher rate than the alternate method
because the employee is covered by a special rate schedule before
promotion but not after promotion, The agency also determines it will
not invoke the exception provision under paragraph (d)(2)(iii). The
agency applies the standard method as follows:
Step A--Apply the geographic conversion rule to determine the
rates of basic pay for the GS-11, step 5, position in Kansas City.
The pay schedules applicable to the employee in Kansas City are the
General Schedule, the locality rate schedule applicable in Kansas
City, and the special rate schedule applicable to the employee's
position in Kansas City.
Step B--Using the underlying General Schedule, increase the GS-
11, step 5, rate by two within-grade increases, which produces the
GS-11, step 7, rate.
Step C--The payable (highest) rate of basic pay for GS-11, step
7, is the corresponding GS-11, step 7, special rate that would be
applicable to the GS-11 position in Kansas City.
Step D--The highest applicable rate range for the GS-12 position
after promotion is the GS-12 locality rate range under the Kansas
City locality rate schedule. Find the lowest step rate in that range
that equals or exceeds the GS-11, step 7, special rate from step C.
That step rate is the payable rate of basic pay upon promotion.
(4) Alternate method. (i) The alternate method of applying the
promotion rule, which involves using pay schedules applicable before
promotion and then converting pay to a different schedule applicable
after promotion, is presented in the following table:
Promotion Rule--Alternate Method
Steps A, B, C--Same as standard method in paragraph (d)(3) of
this section.
Step D--Identify the highest applicable rate range for the
employee's grade after promotion based on consideration of any pay
schedule that applied to the employee's position of record before
promotion (after any geographic conversion). (Do not consider pay
schedules that apply only to the employee's new position of record
after promotion. For example, if a particular special rate schedule
applies only to an employee's position of record after promotion,
disregard that schedule in applying this step.) Find the lowest step
in the highest applicable rate range that equals or exceeds the rate
identified in step C. (If the rate identified in step C exceeds the
maximum of the rate range identified in this step, the employee's
payable rate is that maximum rate, or, if the employee's existing
rate is higher than that maximum rate, a retained rate under 5 CFR
part 536 equal to that existing rate.)
Step E--Convert the lowest step rate identified in step D to a
corresponding step rate (same step) in the highest applicable rate
range for the employee's new position of record after promotion.
This is the employee's alternate payable rate of basic pay upon
promotion. (If the rate derived under step D was a retained rate,
determine the alternate payable rate of basic pay as provided in
paragraph (d)(4)(ii) of this section.)
Step F--If the alternate payable rate identified in step E
exceeds the payable rate resulting from the standard method in
paragraph (d)(3) of this section, the employee is entitled to the
alternate rate upon promotion. Otherwise, the employee is entitled
to the payable rate derived under the standard method, except as
provided in paragraph (d)(2)(iii) of this section.
(ii) In applying step E of the table in paragraph (d)(4)(i) of this
section, if the rate derived under step D was a retained rate, compare
the retained rate to the highest applicable rate range identified in
step E. If the retained rate exceeds the maximum of that rate range,
the retained rate continues and is the employee's alternate payable
rate upon promotion. If the retained rate is below the rate range
maximum, the employee's alternate payable rate upon promotion is the
maximum rate of the range (step 10).
(iii) Example of alternate method: A GS-7, step 7, employee in
Atlanta is promoted to a GS-9 position in Washington, DC. The promotion
involves not only a change in grade but also a change in the employee's
occupational series. In Washington, DC, no special rate schedule would
apply to a GS-7 or GS-9 position in the old occupational series, but a
special rate schedule does apply to the GS-9 position in the new
occupational series. Thus, different pay schedules apply before and
after promotion, and the alternate method would result in a higher rate
than the standard method. As provided in paragraph (d)(2)(ii) of this
section, the agency must apply the alternate method and compare the
result to the result derived under the standard method, as follows:
Step A--Apply the geographic conversion rule in Sec. 531.205 to
determine the rates of basic pay for the GS-7, step 7, position in
Washington, DC. Based on the GS-7 position before promotion
(including the old occupational series), the pay schedules
applicable to the employee in Washington, DC, would be the General
Schedule and the locality rate schedule applicable in Washington,
DC.
Step B--Using the underlying General Schedule, increase the GS-
7, step 7, rate by two within-grade increases, which produces the
GS-7, step 9, rate.
Step C--The payable (highest) rate of basic pay for GS-7, step
9, is the corresponding GS-7, step 9, locality rate in Washington,
DC.
Step D--If the employee were promoted to a GS-9 position in the
old occupational series, the highest applicable rate range for that
GS-9 position after promotion would be the GS-11 locality rate range
in Washington, DC. The GS-9, step 3, locality rate is the lowest
step rate in that range that equals or exceeds the GS-7, step 9,
locality rate from step C.
Step E--Convert the GS-9, step 3, locality rate to the higher
GS-9, step 3, special rate that applies to the employee's position
after promotion (including the new occupational series). That GS-9,
step 3, special rate is the payable rate of basic pay upon
promotion.
Step F--Assume that the standard method would have compared the
GS-7, step 9, locality rate directly to the higher GS-9 range of
special rates and produced a rate of GS-9, step 1. Since the rate
produced by the alternate method (GS-9, step 3) is greater than the
rate produced by the standard method, the result of the alternate
method is used.
(5) If employee was receiving a retained rate before promotion. (i)
If an employee's existing payable rate of basic pay before promotion is
a retained rate, apply the applicable promotion methods in paragraphs
(d)(3) or (d)(4) of this section as if the employee were receiving the
maximum rate of the employee's grade before promotion.
(ii) If the payable rate of basic pay after promotion determined
under paragraph (d)(5)(i) of this section is greater than the
employee's existing retained rate, the employee is entitled to that
payable rate.
(iii) If the existing retained rate is greater than the rate
determined under
[[Page 31297]]
paragraph (d)(5)(i) of this section, the retained rate must be compared
to the highest applicable rate range for the position after promotion,
as provided in 5 CFR 536.304. The employee is entitled to the lowest
step rate in the range that equals or exceeds the retained rate or, if
the retained rate exceeds the range maximum, to the retained rate.
(6) If employee is promoted from GS-1 or GS-2. In applying the
promotion rule to an employee who is promoted from step 9 or 10 of
grade GS-1 or GS-2, the value of two within-grade increases is
determined by doubling the within-grade increase between step 9 and 10
for the applicable grade.
(e) Temporary promotions. Pay is set for an employee receiving a
temporary promotion on the same basis as a permanent promotion. Upon
expiration or termination of the temporary promotion, pay is set as
provided in Sec. 531.215(c). If a temporary promotion is made
permanent immediately after the temporary promotion ends, the agency
may not return the employee to the lower grade; instead, the agency
must convert the employee's temporary promotion to a permanent
promotion without a change in pay.
(f) Corrections of demotions. The promotion rule in this section
may not be used in correcting an erroneous demotion. (See Sec.
531.215(e).)
Sec. 531.215 Setting pay upon demotion.
(a) General. Except as otherwise provided in this section, an
employee who is demoted is entitled to the minimum payable rate of
basic pay for the lower grade unless the agency sets the employee's pay
at a higher rate under--
(1) The grade and pay retention rules in 5 CFR part 536, as
applicable; or
(2) The maximum payable rate rule in Sec. 531.221, as applicable.
(b) Geographic conversion. If the employee's official worksite
after demotion is in a different geographic location where different
pay schedules apply, the agency must first convert the employee's
payable rate of pay as required by Sec. 531.205 before setting the
demoted employee's pay using the grade and pay retention rules in 5 CFR
part 536 or the maximum payable rate rule in Sec. 531.221.
(c) Expiration or termination of a temporary promotion. (1) When an
employee is returned to the lower grade from which promoted on
expiration or termination of a temporary promotion, the agency must set
the employee's payable rate of basic pay in the lower grade as if he or
she had not been temporarily promoted, unless the agency sets pay at a
higher rate under the maximum payable rate rule in Sec. 531.221. As
provided in subpart D of this part, time during the temporary promotion
may be creditable service towards GS within-grade increases in the
lower grade.
(2) If a temporary promotion is made permanent immediately after
the temporary promotion ends, the agency may not return the employee to
the lower grade. (See Sec. 531.214(e).)
(d) Demotion upon failure to complete a supervisory probationary
period. When an employee promoted to a supervisory or managerial
position does not satisfactorily complete a probationary period
established under 5 U.S.C. 3321(a)(2) and is returned to a position at
the lower grade held before the promotion, the agency must set the
employee's payable rate of basic pay upon return to the lower grade as
if the employee had not been promoted to the supervisory or managerial
position, unless the agency sets pay at a higher rate under the maximum
payable rate rule in Sec. 531.221. As provided in subpart D of this
part, time served following the promotion may be creditable service
towards GS within-grade increases in the lower grade. However, nothing
in this paragraph prohibits an agency from taking action against an
employee covered by this paragraph for cause unrelated to supervisory
or managerial performance and setting pay in accordance with such
action.
(e) Correcting an erroneous demotion. When a demotion is determined
to be erroneous and is canceled, the agency must set the employee's
rate of basic pay as if the employee had not been demoted. The action
is a correction of the original demotion action and may not be treated
as a promotion under Sec. 531.214. For example, when a demotion based
on a reclassification of the employee's position is found to be
erroneous and is corrected retroactively under 5 CFR 511.703, the
corrective action is cancellation of the original demotion.
Sec. 531.216 Setting pay when an employee moves from a Department of
Defense or Coast Guard nonappropriated fund instrumentality.
(a) General. This section governs the setting of pay for an
employee who moves to a GS position from a position in a Department of
Defense or Coast Guard nonappropriated fund instrumentality (NAFI) (as
described in 5 U.S.C. 2105(c)) without a break in service of more than
3 days and without a change in the employing agency. If an employee
moves from an NAFI position to a GS position with a break of more than
3 days or in conjunction with a transfer to a different agency, the
employee has no special conversion rights, and this section does not
apply.
(b) NAFI highest previous rate. For the purpose of this section,
the term ``NAFI highest previous rate'' means the highest rate of basic
pay received by an employee during service in a NAFI position, as
described in 5 U.S.C. 2105(c).
(c) Voluntary move. (1) For a Department of Defense or Coast Guard
employee who moves voluntarily, without a break in service of more than
3 days, from an NAFI position in the Department of Defense or the Coast
Guard to a GS position in the same agency, the agency may set the
employee's initial payable rate of basic pay at any step rate in the
highest applicable rate range currently in effect for the employee's GS
position of record and official worksite which does not exceed the
employee's NAFI highest previous rate of pay, except as provided in
paragraph (c)(2) or (3) of this section.
(2) If the highest applicable rate range would be different if the
official worksite for the employee's position of record were located at
the place where the employee was stationed while earning the NAFI
highest previous rate, the agency must determine the employee's maximum
payable rate of basic pay as follows:
(i) Compare the NAFI highest previous rate to the highest
applicable rate range currently in effect in the location where the
employee was stationed while earning that rate. The highest applicable
rate range is determined based on the pay schedules that would be
applicable to the employee's current GS position of record if the
employee were stationed in that location. Identify the highest step
rate in the highest applicable rate range that was equal to or lower
than the NAFI highest previous rate. If the NAFI highest previous rate
is less than the range minimum, identify the minimum step rate (step
1).
(ii) Identify the step rate in the highest applicable rate range
for the employee's current official worksite and position of record
that corresponds to the step rate derived under paragraph (c)(2)(i) of
this section. That corresponding rate is the maximum payable rate at
which the agency may set the employee's pay under this section, except
as provided by paragraph (c)(3) of this section. The agency may set the
employee's rate of basic pay at any step rate below that maximum
payable rate.
(3) An agency may choose to apply the maximum payable rate rule in
Sec. 531.221 based on a non-NAFI rate of
[[Page 31298]]
basic pay if that rule provides a higher rate than provided by
paragraph (c)(1) or (2) of this section.
(d) Involuntary move. (1) For a Department of Defense or Coast
Guard employee who is moved involuntarily (as defined in paragraph
(d)(3) of this section), without a break in service of more than 3
days, from a position with substantially the same duties in a
Department of Defense or Coast Guard NAFI to a GS position in the same
agency, the employee is entitled to an initial payable rate of basic
pay at the lowest step rate of the grade that is equal to or greater
than the employee's rate of basic pay in the NAFI position immediately
before the move. The agency must compare the employee's former NAFI
rate to the highest applicable rate range for the employee's GS
position of record and official worksite.
(2) For an employee covered by paragraph (d)(1) of this section,
the agency may set the initial payable rate of basic pay at any of the
following rates, unless the employee is entitled to receive a higher
rate of basic pay under paragraph (d)(1) of this section:
(i) A step rate within the highest applicable rate range for the
employee's GS position of record and official worksite that does not
exceed the employee's NAFI highest previous rate (consistent with the
method prescribed in paragraphs (c)(1) and (2) of this section);
(ii) A rate determined under the maximum payable rate rule in Sec.
531.221 (using non-NAFI rates of basic pay); or
(iii) A rate determined under the authority to grant pay retention
in 5 CFR 536.302(a).
(3) For the purpose of this paragraph (d), ``moved involuntarily''
means the movement of the incumbent of an NAFI position in the
Department of Defense or the Coast Guard with the position when it is
moved to the civil service employment system of the Department of
Defense or the Coast Guard, respectively.
Sec. 531.217 Special conversion rules for certain non-GS employees.
When an employee moves (without a break in service) to a GS
position from a non-GS system under an authority in 5 U.S.C. chapters
47, 95, or similar provision of law, and that authority provides that
an employee will be converted to GS-equivalent rates immediately before
leaving the non-GS system, the employee is considered a GS employee in
applying the provisions of this subpart.
Using a Highest Previous Rate Under the Maximum Payable Rate Rule
Sec. 531.221 Maximum payable rate rule.
(a) General. (1) An agency may apply the maximum payable rate rule
as described in this section to determine an employee's payable rate of
basic pay under the GS pay system at a rate higher than the otherwise
applicable rate upon reemployment, transfer, reassignment, promotion,
demotion, or change in type of appointment. (Note: Special rules for GM
employees are provided in Sec. 531.247.) A payable rate set under this
section must take effect on the effective date of the action involved.
This section may not be used to set an employee's rate of basic pay
retroactively unless a retroactive action is required to comply with a
nondiscretionary agency policy.
(2) At its discretion, an agency may set an employee's rate(s) of
basic pay at the maximum rate identified under this section or at a
lower rate. However, the employee's rate may not be lower than the rate
to which he or she is entitled under any other applicable pay-setting
rule.
(3) In applying this section, an agency must use applicable annual
rates of pay or, if a rate under a non-GS system is an hourly rate,
convert the hourly rate to an annual rate.
(b) When highest previous rate is based on a GS rate or LEO special
base rate. When an employee's highest previous rate (as determined
under Sec. 531.222) is based on a GS rate or an LEO special base rate
paid under the GS pay system, an agency must determine the maximum
payable rate of basic pay that may be paid to the employee as follows:
(1) Compare the employee's highest previous rate with the GS rates
for the grade in which pay is currently being set. For this comparison,
use the schedule of GS rates in effect at the time the highest previous
rate was earned. In applying this paragraph to an employee who was a
law enforcement officer receiving an LEO special base rate when the
highest previous rate was earned, compare the highest previous rate to
the applicable LEO special base rates in lieu of GS rates if the grade
in which pay is currently being set is one of the grades from GS-3
through GS-10.
(2) Identify the lowest step in the grade at which the GS rate (or
LEO special base rate, if applicable) was equal to or greater than the
employee's highest previous rate. If the employee's highest previous
rate was greater than the maximum GS rate (or LEO special base rate, if
applicable) for the grade, identify the step 10 rate (i.e., maximum
rate of the grade).
(3) Identify the rate on the currently applicable range of GS rates
or LEO special base rates for the employee's current position of record
and grade that corresponds to the step identified in paragraph (b)(2)
of this section. This rate is the maximum payable GS rate or LEO
special base rate the agency may pay the employee under this section.
(4) After setting the employee's GS or LEO special base rate within
the rate range for the grade (not to exceed the maximum payable rate
identified in paragraph (b)(3) of this section), the agency must
determine the employee's payable rate of basic pay based on the
employee's GS or LEO special base rate.
(c) When highest previous rate is based on a GS employee's special
rate. When a GS employee is reassigned under the conditions described
in Sec. 531.222(c), the employee's former special rate in effect
immediately before the reassignment may be used as the employee's
highest previous rate. If the employee's former special rate schedule
is being adjusted on the effective date of the employee's reassignment,
the agency must determine what the employee's special rate would have
been on that adjusted schedule (before any other simultaneous action)
and treat the resulting special rate as the employee's former special
rate in applying paragraph (c)(1) and (2) of this section. The agency
must apply the maximum payable rate rule as follows:
(1) When the employee is assigned to an official worksite within
the geographic boundaries of a formerly applicable special rate
schedule, compare the former special rate to the rates of basic pay in
the highest applicable rate range for the employee's current position
of record and current official worksite. Identify the lowest step rate
in that range that equals or exceeds the former special rate (or the
maximum step rate, if the former special rate exceeds the range
maximum). That step rate is the employee's maximum payable rate of
basic pay.
(2) When the employee is assigned to an official worksite outside
the geographic boundaries of the formerly applicable special rate
schedule, determine the maximum payable rate as follows:
(i) Convert the former special rate to a corresponding rate (same
step) in the current highest applicable rate range for the new official
worksite based on the employee's position of record immediately before
the reassignment.
(ii) If the rate resulting from the geographic conversion under
paragraph (c)(2)(i) of this section is a special rate, that converted
special rate is deemed to be the employee's former special rate
[[Page 31299]]
and highest previous rate in applying paragraph (c)(2)(iii) of this
section. If the resulting rate is not a special rate, this paragraph
(c) may not be used to determine the employee's maximum payable rate.
Instead, paragraph (b) of this section must be used.
(iii) Compare the employee's highest previous rate (i.e., the
former special rate after the geographic conversion) with the rates on
the current highest applicable rate range for the new official worksite
based on the employee's position of record after the reassignment.
Identify the lowest step rate in that range that equals or exceeds the
highest previous rate (or the maximum step rate, if the highest
previous rate exceeds the range maximum). That step rate is the
employee's maximum payable rate of basic pay.
(3) After setting the employee's rate of basic pay in the highest
applicable rate range (not to exceed the maximum payable rate), the
agency must determine any underlying rate of basic pay to which the
employee is entitled based on the employee's step rate.
(d) When highest previous rate is based on a rate under a non-GS
pay system. When an employee's highest previous rate (as provided in
Sec. 531.222) is based on a rate of basic pay in a non-GS pay system,
the agency must determine the maximum payable rate of basic pay that
may be paid to the employee in his or her current GS position of record
as follows:
(1) Compare the highest previous rate to the highest applicable
rate range in effect at the time and place where the highest previous
rate was earned. The highest applicable rate range is determined as if
the employee held the current GS position of record (including grade in
which pay is being set) at that time and place. Identify the lowest
step rate in that range that was equal to or higher than the highest
previous rate (or the maximum step rate if the highest previous rate
exceeded the range maximum).
(2) Convert the step rate identified in paragraph (d)(1) of this
section to a corresponding rate (same step) in the current highest
applicable rate range for the employee's current GS position of record
and official worksite. That step rate is the employee's maximum payable
rate of basic pay.
(3) After setting the employee's rate of basic pay in the current
highest applicable rate range (not to exceed the maximum payable rate),
the agency must determine any underlying rate of basic pay to which the
employee is entitled at the determined step rate.
Sec. 531.222 Rates of basic pay that may be used as the highest
previous rate.
(a)(1) Subject to the conditions in this section and Sec. 531.223,
the highest previous rate used in applying Sec. 531.221 is--
(i) The highest rate of basic pay previously received by an
individual while employed in a civilian position in any part of the
Federal Government (including service with the government of the
District of Columbia for employees first employed by that government
before October 1, 1987), without regard to whether the position was in
the GS pay system; or
(ii) The highest rate of basic pay in effect when a GS employee
held his or her highest GS grade and highest step within that grade.
(2) The highest previous rate must be a rate of basic pay received
by an employee while serving--
(i) On a regular tour of duty under an appointment not limited to
90 days or less; or
(ii) For a continuous period of not less than 90 days under one or
more appointments without a break in service.
(b) For periods of service as a GS employee, the highest previous
rate may not be a special rate, except as provided in paragraph (c) of
this section. If the highest previous rate is a locality rate, the
underlying GS rate or an LEO special base rate associated with that
locality rate must be used as the highest previous rate in applying
Sec. 531.221(b).
(c) An agency may use a GS employee's special rate established
under 5 U.S.C. 5305 and 5 CFR part 530, subpart C, or 38 U.S.C. 7455 as
the highest previous rate when all of the following conditions apply:
(1) The employee is reassigned to another position in the same
agency at the same grade level;
(2) The special rate is the employee's rate of basic pay
immediately before the reassignment; and
(3) An authorized agency official finds that the need for the
services of the employee, and the employee's contribution to the
program of the agency, will be greater in the position to which
reassigned. An agency must make such determinations on a case-by-case
basis. In each case, the agency must document the determination to use
the special rate as an employee's highest previous rate in writing.
(d) When an agency is barred from using a special rate established
under 5 U.S.C. 5305 and 5 CFR part 530, subpart C, or 38 U.S.C. 7455 as
an employee's highest previous rate under Sec. 531.223(g), the agency
must consider a special rate employee's underlying GS rate (or LEO
special base rate, if applicable) in determining the employee's highest
previous rate for the purpose of applying paragraph (b) of this
section.
Sec. 531.223 Rates of basic pay that may not be used as the highest
previous rate.
The highest previous rate may not be based on the following:
(a) A rate received under an appointment as an expert or consultant
under 5 U.S.C. 3109;
(b) A rate received in a position to which the employee was
temporarily promoted for less than 1 year, except upon permanent
placement in a position at the same or higher grade;
(c) A rate received in a position from which the employee was
reassigned or reduced in grade for failure to satisfactorily complete a
probationary period as a supervisor or manager;
(d) A rate received by an individual while employed by the
government of the District of Columbia who was first employed by that
government on or after October 1, 1987;
(e) A rate received by an individual while employed by a Department
of Defense or Coast Guard nonappropriated fund instrumentality;
(f) A rate received solely during a period of interim relief under
5 U.S.C. 7701(b)(2)(A);
(g) A special rate established under 5 U.S.C. 5305 and 5 CFR part
530, subpart C, or 38 U.S.C. 7455 (except as provided in Sec.
531.222(c)); or
(h) A rate received under a void appointment or a rate otherwise
contrary to applicable law or regulation.
Special Rules for GM Employees
Sec. 531.241 Retaining and losing GM status.
(a) An employee retains status as a GM employee (as defined in
Sec. 531.203) when detailed to any position or when reassigned to
another GS position in which the employee continues to be a supervisor
or management official (as defined in 5 U.S.C. 7103(a)(10) and (11)).
(b) An employee permanently loses status as a GM employee if he or
she is promoted (including a temporary promotion), transferred,
demoted, reassigned to a position in which the employee will no longer
be a supervisor or management official, has a break in service of more
than 3 days, or becomes entitled to a retained rate under 5 CFR part
536. (A retained grade is not considered in determining whether a GM
employee has been reduced in grade. See 5 CFR 536.205.)
Sec. 531.242 Setting pay upon loss of GM status.
(a) On loss of status as a GM employee under Sec. 531.241 (except
as provided in
[[Page 31300]]
paragraph (b) of this section), an employee must receive his or her
existing payable rate of basic pay, plus any of the following
adjustments that may be applicable on the effective date of the loss of
status, in the order specified:
(1) The amount of any annual adjustment in GS rates under 5 U.S.C.
5303, and the amount of any adjustment in locality payments or special
rate supplements, to which the employee otherwise would be entitled on
that date;
(2) The amount of any within-grade increase to which the employee
otherwise would be entitled on that date under 5 U.S.C. 5335 and
subpart D of this part;
(3) The amount resulting from a promotion effective on that date
(consistent with Sec. 531.243(c));
(4) In the case of an employee who loses GM status without a change
of grade and whose GS rate falls between two steps of a GS grade, the
amount of any increase needed to pay the employee the rate for the next
higher step of that grade; and
(5) In the case of an employee whose resulting GS rate is below the
minimum rate of a GS grade, the amount of any increase needed to pay
the employee the minimum rate for that grade.
(b) For an employee who loses status as a GM employee as a result
of a demotion, pay must be set as provided in Sec. 531.215. A GM
employee's off-step GS rate at the grade before demotion is not
converted to a GS step rate before the demotion, but the employee must
be placed on a GS step rate when pay is set in the lower grade.
Sec. 531.243 Promotion of a GM employee.
(a) Upon promotion, an employee's status as a GM employee ends, as
provided in Sec. 531.241(b).
(b) When an employee loses status as a GM employee because of a
temporary promotion and is returned to the lower grade upon expiration
or termination of the temporary promotion under Sec. 531.215(c)(1), he
or she will be deemed to have been placed at the lowest step rate that
equals or exceeds the employee's former GS rate (as a GM employee) on
the effective date of the temporary promotion, before applying any
other step increases based on his or her service during the temporary
promotion.
(c) A GM employee's GS rate is used as the existing rate of pay in
applying the promotion rule in Sec. 531.214. A GM employee's off-step
GS rate in the grade before promotion is not converted to a GS step
rate in applying the promotion rule, but the employee must be placed on
a GS step rate in the post-promotion grade.
Sec. 531.244 Adjusting a GM employee's rate at the time of an annual
pay adjustment.
(a) On the effective date of an annual pay adjustment under 5
U.S.C. 5303 or similar authority, an agency must set the new GS rate
for a GM employee as follows:
(1) For a GM employee whose rate of basic pay equals a regular GS
step rate, set the employee's rate at the new step rate in the adjusted
General Schedule that corresponds to the employee's grade and step as
in effect immediately before the effective date of the pay adjustment.
(2) For a GM employee whose rate of basic pay is below the minimum
rate of the GS rate range for the employee's grade, increase the
existing GM rate by the same percentage as the annual pay adjustment
for the GS rate range applicable to the employee's grade, with the
result rounded to the nearest dollar (not to exceed the minimum rate of
the range).
(3) For a GM employee whose rate of basic pay is between GS step
rates, apply the following method:
Step A--Using the rates and ranges in effect immediately before
the annual pay adjustment, find the difference between the GM
employee's GS rate and the minimum rate of the GS rate range for the
employee's grade.
Step B--Find the difference between the maximum rate and minimum
rate of the GS rate range in effect immediately before the annual
pay adjustment. (If the GS maximum rate was not payable because of
the EX level V pay limitation in 5 U.S.C. 5303(f), use the uncapped
maximum rate.)
Step C--Divide the result from step A by the result from step B.
Carry this result to the seventh decimal place and truncate, rather
than round, the result. This decimal factor represents the
employee's relative position in the rate range.
Step D--Using rates and ranges in effect after the annual pay
adjustment, find the difference between the maximum rate and minimum
rate of the new GS rate range for the employee's grade. (If the GS
maximum rate was not payable because of the EX level V pay
limitation, use the uncapped maximum rate.)
Step E--Multiply the result from step D by the factor derived
from step C.
Step F--Add the result from step E to the minimum rate of the
employee's current GS rate range and round to the next higher whole
dollar. The resulting rate is the GM employee's new GS rate (subject
to the EX level V pay limitation).
Sec. 531.245 Computing locality rates and special rates for GM
employees.
Locality rates and special rates are computed for GM employees in
the same manner as locality rates and special rates for other GS
employees. The applicable locality payment or special rate supplement
is added on top of the GM employee's GS rate.
Sec. 531.246 Within-grade increases for GM employees.
GM employees are entitled to within-grade increases as provided
under subpart D of this part. A within-grade increase may not cause a
GM employee's rate of basic pay to exceed the maximum rate of his or
her grade. GM employees may receive quality step increases as provided
in subpart E.
Sec. 531.247 Maximum payable rate rule for GM employees.
(a) A rate received by a GM employee may qualify as a highest
previous rate under Sec. 531.222.
(b) As provided in Sec. Sec. 531.221(a) and 531.241(b), if an
employee loses status as a GM employee because of a transfer,
promotion, demotion, or reassignment to a position in which the
employee will no longer be a supervisor or management official, and if
the employing agency after the action chooses to apply the maximum
payable rate rule, the agency must follow the rules in Sec. 531.221.
(c) If an employee retains GM status after an action that allows
application of the maximum payable rate rule in Sec. 531.221 to set
the employee's pay, the rules in Sec. 531.221 must be applied in
accordance with the following special provisions:
(1) In comparing the employee's highest previous rate to an
applicable rate range for the grade in which pay is being set, do not
identify the lowest step rate that equals or exceeds the highest
previous rate. Instead, identify the rate in the rate range that equals
the highest previous rate unless that highest previous rate is below
the range minimum or above the range maximum. If the highest previous
rate is below the range minimum, identify the minimum rate (step 1) of
the grade. If the highest previous rate is above the range maximum,
identify the maximum rate (step 10) of the grade.
(2) In applying Sec. 531.221(b) for an employee whose highest
previous rate is a GS rate, the highest previous rate must be compared
to the GS rate range for the grade in which pay is currently being set,
but which was in effect at the time the highest previous rate was
earned. If the highest previous rate was earned while the current GS
rate range was in effect, the rate identified under paragraph (c)(1) of
this section is the maximum payable GS rate. Otherwise, based on the
rate identified in paragraph (c)(1) of this section, the agency must
[[Page 31301]]
determine the corresponding rate in the current GS rate range for the
grade in which pay is currently being set. That corresponding rate is
the maximum payable GS rate. If the highest previous rate was above the
range minimum and below the range maximum, the corresponding rate in
the current GS rate range must be derived as follows:
Step 1--Find the difference between the employee's highest
previous rate and the minimum rate for the GS rate range (for the
employee's current grade) in effect at the time the highest previous
rate was earned.
Step 2--Find the difference between the maximum rate and the
minimum GS rate of the rate range identified in step 1. (If the GS
maximum rate was not payable because of the EX level V pay
limitation, use the uncapped maximum rate.)
Step 3--Divide the result from step 1 by the result from step 2.
Carry this result to the seventh decimal place and truncate, rather
than round, the result. This decimal factor represents the
employee's relative position in the rate range.
Step 4--Using the current GS rate range (for the employee's
current grade), find the difference between the maximum rate and the
minimum rate. (If the GS maximum rate was not payable because of the
EX level V pay limitation, use the uncapped maximum rate.)
Step 5--Multiply the result from step 4 by the factor derived
from step 3.
Step 6--Add the result from step 5 to the minimum rate for the
employee's current GS rate range and round to the next higher whole
dollar. This rate is the maximum payable GS rate the agency may pay
the employee (subject to the EX level V pay limitation).
(3) In applying Sec. 531.221(c) for an employee whose highest
previous rate is a special rate, the highest previous rate (after any
geographic conversion) must be compared directly to the current highest
applicable rate range for the employee's position of record and
official worksite after reassignment. Thus, the rate identified under
paragraph (c)(1) of this section is the maximum payable rate of basic
pay.
Subpart C--[Removed and Reserved]
0
13. Remove and reserve subpart C, consisting of Sec. Sec. 531.301
through 531.307.
Subpart D--Within-Grade Increases
0
14. Revise Sec. 531.402 to read as follows:
Sec. 531.402 Employee coverage.
(a) Except as provided in paragraph (b) of this section, this
subpart applies to employees who--
(1) Are classified and paid under the General Schedule;
(2) Occupy permanent positions; and
(3) Are paid less than the maximum rate of their grade.
(b) This subpart does not apply to any employee who is appointed by
the President, by and with the advice and consent of the Senate.
0
15. In Sec. 531.403--
0
a. Amend the definition of acceptable level of competence by adding
``(or designee)'' after ``head of the agency'';
0
b. Add in alphabetical order definitions of General Schedule, GM
employee, GS rate, law enforcement officer, LEO special base rate,
promotion, and temporary promotion;
0
c. Revise the definitions of agency, employee, equivalent increase,
next higher rate within the grade, and rate of basic pay; and
0
d. Revise the introductory text and paragraph (2) of the definition of
within-grade increase.
The additions and revisions read as follows:
Sec. 531.403 Definitions.
* * * * *
Agency means an agency with employees covered by this subpart, as
provided in Sec. 531.402.
* * * * *
Employee has the meaning given that term in 5 U.S.C. 2105, except
that for the purpose of applying the provisions regarding equivalent
increases and creditable service with respect to non-GS service,
employee also includes--
(1) An individual employed by the U.S. Postal Service or the Postal
Rate Commission who would be considered an employee under 5 U.S.C. 2105
but for the exclusion in section 2105(e); and
(2) An individual employed by a nonappropriated fund
instrumentality for service that is creditable under Sec.
531.406(b)(4).
Equivalent increase means an increase in an employee's rate of
basic pay, or an opportunity for such an increase under a non-GS pay
system, as described in Sec. 531.407.
General Schedule or GS means the classification and pay system
established under 5 U.S.C. chapter 51 and subchapter III of chapter 53.
The term also refers to the pay schedule of GS rates established under
5 U.S.C. 5332, as adjusted under 5 U.S.C. 5303 or other law (including
GS rates payable to GM employees). Law enforcement officers receiving
LEO special base rates are covered by the GS classification and pay
system, but receive higher base rates of pay in lieu of GS rates at
grades GS-3 through GS-10.
GM employee has the meaning given that term in 5 CFR 531.203.
GS rate means a rate of basic pay within the General Schedule,
excluding additional pay of any kind such as locality payments under
subpart F of this part and special rate supplements under 5 CFR part
530, subpart C, or 38 U.S.C. 7455. A rate payable to a GM employee is
considered a GS rate.
Law enforcement officer or LEO has the meaning given that term in 5
CFR 550.103.
LEO special base rate means a special base rate established for GS
law enforcement officers at grades GS-3 through GS-10 under section 403
of the Federal Employees Pay Comparability Act of 1990 (section 529 of
Pub. L. 101-509, November 5, 1990, as amended) which is used in lieu of
a GS rate.
Next higher rate within the grade for a GM employee means the rate
of basic pay that exceeds the employee's existing rate of basic pay by
one within-grade increase, not to exceed the maximum rate of the grade.
For the purpose of this definition, a within-grade increase equals the
dollar value of the GS within-grade increase for the applicable grade
(excluding any locality payment, special rate supplement, or any other
additional payment).
* * * * *
Promotion means an employee's movement from one grade or level to a
higher grade or level while continuously employed (including such a
movement in conjunction with a transfer).
Rate of basic pay means the rate of pay fixed by law or
administrative action for the position held by an employee before any
deductions and exclusive of additional pay of any kind. For an employee
covered by the General Schedule, that rate of basic pay is the GS rate
or, if applicable, an LEO special base rate.
* * * * *
Temporary promotion means a time-limited promotion with a not-to-
exceed date or a specified term.
* * * * *
Within-grade increase is synonymous with the term ``step increase''
used in 5 U.S.C. 5335 and means--* * *
(2) For a GM employee whose rate does not equal a regular GS step
rate (i.e., an off-step rate), a periodic increase in an employee's
rate of basic pay from the employee's current rate to the next higher
rate within the grade (as defined in this section) consistent with
section 4 of Public Law 103-89.
0
16. Revise Sec. 531.407 to read as follows:
Sec. 531.407 Equivalent increase determinations.
(a) GS employees. For a GS employee, an equivalent increase is
considered to occur at the time of any of the following personnel
actions:
(1) A within-grade increase, excluding a quality step increase
granted under
[[Page 31302]]
subpart E of this part or an interim within-grade increase if that
increase is later terminated under Sec. 531.414;
(2) A promotion (permanent or temporary) to a higher grade,
including the promotion of an employee receiving a retained rate under
5 CFR 359.705 or 5 CFR part 536 that does not result in a pay increase,
but excluding--
(i) A temporary promotion if the employee is returned to the grade
and step from which promoted (before any adjustment in the step (or
rate) based on credit for service during the temporary promotion, as
provided in Sec. 531.215(c)); or
(ii) A promotion to a supervisory or managerial position when the
employee does not satisfactorily complete a probationary period
established under 5 U.S.C. 3321(a)(2) and is returned to a position at
the lower grade and step or rate held by the employee before placement
(before any adjustment in the step or rate based on credit for service
during the probationary period, as provided in Sec. 531.215(d));
(3) Application of the maximum payable rate rule in Sec. 531.221
that results in a higher step rate within the employee's GS grade (or
an increase for a GM employee to the next higher rate within the
grade), except for application of that rule in a demotion to the extent
that the employee's rate of basic pay after demotion does not exceed
the lowest step rate that equals or exceeds the employee's rate of
basic pay immediately before the demotion;
(4) Application of the superior qualifications and special needs
pay-setting authority in Sec. 531.212 that results in a higher step
rate within the employee's GS grade (or an increase for a GM employee
to the next higher rate within the grade); or
(5) Application of the qualifications pay authority in 5 U.S.C.
9814 to an employee of the National Aeronautics and Space
Administration, when the employee fulfills the 1-year service
requirement in the position for which qualifications pay was paid or in
a successor position.
(b) Non-GS employees who move to the GS pay system. For an employee
who performs service under a non-GS Federal pay system which is
potentially creditable towards a GS within-grade increase waiting
period, an equivalent increase is considered to occur at the time of
any of the following personnel actions:
(1) A promotion to a higher grade or work level (unless the
promotion is cancelled and the employee's rate of basic pay is
redetermined as if the promotion had not occurred); or
(2) An opportunity to receive a within-level or within-range
increase that results in forward movement in the applicable range of
rates of basic pay, where ``forward movement in the applicable range''
means any kind of increase in the employee's rate of basic pay other
than an increase that is directly and exclusively linked to--
(i) A general structural increase in the employee's basic pay
schedule or rate range (including the adjustment of a range minimum or
maximum); or
(ii) The employee's placement under a new basic pay schedule within
the same pay system.
(c) Locality rates and special rates. Since locality rates under
subpart F of this part and special rates under 5 CFR part 530, subpart
C, and similar rates under other legal authority (e.g., 38 U.S.C. 7455)
are not rates of basic pay for the purpose of this subpart, increases
in pay resulting from an adjustment in an employee's locality payment
or special rate supplement or from placement on a new locality rate or
special rate schedule are not considered in making equivalent increase
determinations.
Subpart F--Locality-Based Comparability Payments
0
17. Revise Sec. 531.601 to read as follows:
Sec. 531.601 Purpose.
This subpart contains Office of Personnel Management (OPM)
regulations implementing 5 U.S.C. 5304, which authorizes locality
payments in defined geographic areas for GS employees and other
categories of employees to whom locality payments are extended. These
regulations must be read together with 5 U.S.C. 5304.
0
18. In Sec. 531.602--
0
a. Revise the definitions of General Schedule and scheduled annual rate
of pay;
0
b. Amend the definition of employee by removing the words ``duty
station'' in both places it appears and adding in each place the words
``worksite';
0
c. Remove the definitions of locality rate of pay and official duty
station; and
0
d. Add in alphabetical order the definitions of GM employee, GS rate,
law enforcement officer, LEO special base rate, locality payment,
locality pay percentage, locality rate, official worksite, position of
record, rate range, retained rate, special rate, special rate schedule,
special rate supplement, telework, and telework agreement.
The additions and revisions read as follows:
Sec. 531.602 Definitions.
* * * * *
General Schedule or GS means the classification and pay system
established under 5 U.S.C. chapter 51 and subchapter III of chapter 53.
It also refers to the pay schedule of GS rates established under 5
U.S.C. 5332, as adjusted under 5 U.S.C. 5303 or other law (including GS
rates payable to GM employees). Law enforcement officers (LEOs)
receiving LEO special base rates are covered by the GS classification
and pay system, but receive higher base rates of pay in lieu of GS
rates at grades GS-3 through GS-10.
GM employee has the meaning given that term in 5 CFR 531.203.
GS rate means a rate of basic pay within the General Schedule,
excluding any LEO special base rate and additional pay of any kind such
as locality payments or special rate supplements. A rates payable to a
GM employee is considered a GS rate.
* * * * *
Law enforcement officer or LEO has the meaning given that term in 5
CFR 550.103.
LEO special base rate means a special base rate established for GS
law enforcement officers at grades GS-3 through GS-10 under section 403
of the Federal Employees Pay Comparability Act of 1990 (section 529 of
Pub. L. 101-509, November 5, 1990, as amended) which is used in lieu of
a GS rate.
* * * * *
Locality payment means a locality-based comparability payment
payable under 5 U.S.C. 5304 and this subpart. An employee's locality
payment is the difference between the employee's locality rate and the
employee's scheduled annual rate of pay.
Locality pay percentage means the percentage authorized for a
locality pay area under 5 U.S.C. 5304 or 5304a which is used to compute
a locality payment (before applying any maximum pay limitations under
Sec. 531.606).
Locality rate means a scheduled annual rate of pay plus an
applicable locality payment. An employee's locality rate is computed
under Sec. 531.604.
* * * * *
Official worksite means the official location of an employee's
position of record as determined under Sec. 531.605.
Position of record means an employee's official position (defined
by grade, occupational series, employing agency, LEO status, and any
other condition that determines coverage under a pay schedule (other
than official worksite)), as documented on the employee's most recent
Notification of Personnel Action (Standard Form 50 or equivalent) and
current position
[[Page 31303]]
description, excluding any position to which the employee is
temporarily detailed. For an employee whose change in official position
is followed within 3 workdays by a reduction in force resulting in the
employee's separation before he or she is required to report for duty
in the new position, the position of record in effect immediately
before the position change is deemed to remain the position of record
through the date of separation.
Rate range or range means a range of rates of basic pay for a grade
within an established pay schedule, excluding any retained rate. A rate
range may consist of GS rates, LEO special base rates, locality rates,
special rates, or, for non-GS employees, similar rates under other
legal authority.
Retained rate means a rate above the maximum rate of the rate range
applicable to the employee which is payable under 5 CFR part 536 or
similar legal authority.
Scheduled annual rate of pay means, as applicable--
(1) The annual GS rate payable to an employee;
(2) An annual LEO special base rate; or
(3) For an employee in a category of positions described in 5
U.S.C. 5304(h)(1)(A)-(D) for which the President (or designee) has
authorized locality payments under 5 U.S.C. 5304(h)(2), the annual rate
of pay fixed by law or administrative action, exclusive of any
locality-based adjustments (including adjustments equivalent to local
special rate supplements under 5 CFR part 530, subpart C) or additional
pay of any other kind.
Special rate means a rate of pay within a special rate schedule
established under 5 CFR part 530, subpart C, or a similar rate
established under other legal authority (e.g., 38 U.S.C. 7455). The
term special rate does not include an LEO special base rate.
Special rate schedule means a pay schedule established under 5 CFR
part 530, subpart C, to provide higher rates of pay for specified
categories of positions or employees at one or more grades or levels or
a similar schedule established under other legal authority (e.g., 38
U.S.C. 7455).
Special rate supplement means the portion of a special rate paid
above an employee's GS rate or equivalent rate of basic pay after
applying any applicable pay limitation. For a law enforcement officer
receiving an LEO special base rate who is also entitled to a special
rate under 5 CFR part 530, subpart C, a special rate supplement
increases the LEO's pay only to the extent that the resulting special
rate exceeds the LEO's rate of basic pay.
Telework means work performed by an employee at an alternative
worksite instead of the location of the employee's assigned
organization. Alternative worksites may include the employee's home,
telecenter, satellite office, field installation, or other location.
Telework agreement means a formal oral or written agreement between
a supervisor and an employee to permit the employee to work at an
alternative worksite (i.e., telework) instead of the location of the
employee's assigned organization.
Sec. 531.603 [Amended]
0
19. In Sec. 531.603, amend paragraph (a) by removing the words ``duty
stations'' and adding in their place the word ``worksites''.
0
20. Revise Sec. 531.604 to read as follows:
Sec. 531.604 Determining an employee's locality rate.
(a) An annual locality rate consists of a scheduled annual rate of
pay plus an applicable locality payment (representing an annual dollar
amount), as determined under paragraph (b) of this section.
(b) An agency determines an employee's locality rate by--
(1) Determining the employee's official worksite consistent with
the rules in Sec. 531.605;
(2) Determining the locality pay area in which the employee's
official worksite is located, consistent with the locality pay areas
established in Sec. 531.603;
(3) Identifying the locality pay percentage in effect in the
applicable locality pay area;
(4) Increasing the employee's scheduled annual rate of pay by the
applicable locality pay percentage and rounding the result to the
nearest whole dollar (counting 50 cents and over as the next higher
dollar); and
(5) Applying any applicable limitation as described in Sec.
531.606.
(c) A locality rate may be expressed as an hourly, daily, weekly,
or biweekly rate, as provided in Sec. 531.607.
0
21. Revise Sec. 531.605 to read as follows:
Sec. 531.605 Determining an employee's official worksite.
(a) Except as otherwise provided in this section, the official
worksite is the location of an employee's position of record where the
employee regularly performs his or her duties or, if the employee's
work involves regular travel or the employee's work location varies on
a daily basis, where his or her work activities are based, as
determined by the employing agency. An agency must document an
employee's official worksite on an employee's Notification of Personnel
Action (Standard Form 50 or equivalent).
(b) For an employee who is relocated and authorized to receive
relocation expenses under 5 U.S.C. chapter 57, subchapter II (or
similar authority), the official worksite is the established worksite
for the position in the area to which the employee has been relocated.
For an employee authorized to receive relocation expenses under 5
U.S.C. 5737 in connection with an extended assignment resulting in a
temporary change of station, the duty station associated with the
extended assignment is the official worksite. (See 41 CFR 302-1.1.)
(c) For an employee whose assignment to a new worksite is followed
within 3 workdays by a reduction in force resulting in the employee's
separation before he or she is required to report for duty at the new
location, the official worksite in effect immediately before the
assignment remains the official worksite through the date of
separation.
(d)(1) For an employee covered by a telework agreement who is
scheduled (while in duty status) to report at least once a week on a
regular and recurring basis to the regular worksite for the employee's
position of record, the regular worksite is the official worksite.
However, for an employee whose work location varies on a daily basis,
the employee need not report at least once a week to the established
official worksite (where the employee's work activities are based) as
long as the employee is performing work within the locality pay area
for that worksite at least once a week on a regular and recurring
basis. An agency must determine a telework employee's official worksite
on a case-by-case basis.
(2) If an employee covered by a telework agreement does not meet
the requirements of paragraph (d)(1) of this section, the employee's
official worksite is the location of the employee's telework site.
(3) An authorized agency official may make a temporary exception to
the requirements in paragraph (d)(1) and (2) of this section in
appropriate situations, such as when an employee is recovering from an
injury or medical condition that prevents the employee from commuting
to the regular worksite.
(e) In applying paragraph (d)(1) of this section for the purpose of
other location-based pay entitlements under other regulations that
reference this section, the reference to a locality pay area is deemed
to be a reference to the
[[Page 31304]]
applicable geographic area associated with the given pay entitlement.
For example, for the purpose of special rates under 5 CFR part 530,
subpart C, the reference to a locality pay area is deemed to be a
reference to the geographic area covered by a special rate schedule.
0
22. Revise Sec. 531.606 to read as follows:
Sec. 531.606 Maximum limits on locality rates.
(a) Except as provided by paragraph (b) of this section, a locality
rate may not exceed the rate of basic pay payable for level IV of the
Executive Schedule.
(b)(1) A locality rate for an employee in a category of positions
described in 5 U.S.C. 5304(h)(1)(A)-(C) may not exceed the rate for
level III of the Executive Schedule.
(2) A locality rate for an employee in a category of positions
described in 5 U.S.C. 5304(h)(1)(D) may not exceed--
(i) The rate for level IV of the Executive Schedule, when the
maximum scheduled annual rate of pay (excluding any retained rate) for
such positions is less than or equal to the maximum payable scheduled
annual rate of pay for GS-15; or
(ii) The rate for level III of the Executive Schedule, when the
maximum scheduled annual rate of pay (excluding any retained rate) for
such positions exceeds the maximum payable scheduled annual rate of pay
for GS-15, but is not more than the rate for level IV of the Executive
Schedule.
(3) If initial application of paragraph (b)(2) of this section
otherwise would reduce an employee's existing locality rate, the
employee's locality rate is capped at the higher of--
(i) The amount of the employee's locality rate on the day before
paragraph (b)(2) of this section was initially applied, or
(ii) The rate for level IV of the Executive Schedule.
(c) Paragraph (b) of this section does not apply to experts and
consultants appointed under 5 U.S.C. 3109 if the pay for those experts
and consultants is limited to the highest rate payable under 5 U.S.C.
5332 (i.e., the unadjusted maximum GS-15 rate). Such experts and
consultants are subject to the pay limitations established in 5 CFR
304.105.
(d) A portion of a locality payment that is not payable because of
an applicable limitation is not considered in applying any other
provision of law or regulation.
0
23. Revise Sec. 531.607 to read as follows:
Sec. 531.607 Computing hourly, daily, weekly, and biweekly locality
rates.
(a) Apply the following methods to convert an annual locality rate
to an hourly, daily, weekly, or biweekly rate:
(1) To derive an hourly rate, divide the annual locality rate by
2,087 and round to the nearest cent, counting one-half cent and over as
the next higher cent.
Example:
Annual locality rate = $50,000
Computation of hourly rate: $50,000 / 2,087 = 23.957 or $23.96.
(2) To derive a daily rate, multiply the hourly rate by the number
of daily hours of service required by the employee's basic daily tour
of duty.
Example:
Hourly rate = $23.96
Daily hours = 8
Computation of daily rate: $23.96 x 8 = $191.68
(3) To derive a weekly or biweekly rate, multiply the hourly rate
by 40 or 80, as applicable.
Example:
Hourly rate = $23.96
Biweekly hours = 80
Computation of biweekly rate: $23.96 x 80 = $1,916.80
(b) Notwithstanding paragraph (a) of this section, for a
firefighter whose pay is computed under 5 U.S.C. 5545b, a firefighter
hourly locality rate is computed using a divisor of 2,756 hours instead
of 2,087, as prescribed in 5 CFR part 550, subpart M. Also, such a
firefighter's weekly and biweekly locality rates must be based on the
firefighter's extended tour of duty as prescribed in that subpart.
0
24. Add a new Sec. 531.608 to read as follows:
Sec. 531.608 Relationship of locality rates to other pay rates.
(a) An employee must receive the greatest of the following rates of
pay, as applicable--
(1) The scheduled annual rate of pay payable to the employee;
(2) A locality rate under this subpart;
(3) A special rate under 5 CFR part 530, subpart C, or a similar
rate under other legal authority (e.g., 38 U.S.C. 7455); or
(4) A retained rate under 5 CFR part 536 or a similar rate under
other legal authority.
(b) A GS employee receiving a special rate is entitled to any
applicable locality payment on the same basis as any other GS employee.
The locality payment is computed based on the employee's scheduled
annual rate of pay, which excludes any special rate. The employee is
entitled to the higher of the locality rate or the corresponding
special rate. As provided in 5 U.S.C. 5305(h) and 5 CFR 530.303(d),
when an employee's locality rate exceeds a corresponding special rate,
the employee's entitlement to the special rate is terminated.
0
25. Add a new Sec. 531.609 to read as follows:
Sec. 531.609 Adjusting or terminating locality rates.
(a) When an employee's official worksite is changed to a different
locality pay area, the employee's entitlement to the locality rate for
the new locality pay area begins on the effective date of the change in
official worksite.
(b) A locality rate must be adjusted as of the effective date of
any change in the applicable scheduled annual rate of pay or any change
in the applicable locality percentage.
(c) Except as provided in paragraph (d) of this section,
entitlement to a locality rate associated with a particular locality
pay area under this subpart terminates on the date--
(1) An employee's official worksite is no longer in the locality
pay area;
(2) An employee is no longer in a position covered by this subpart;
or
(3) An employee separates from Federal service.
(d) In the event of a change in the geographic coverage of a
locality pay area as a result of the addition by OMB of a new area(s)
to the definition of an MSA or CSA or as the result of any change made
by the President's Pay Agent in the definition of a locality pay area,
the effective date of any change in an employee's entitlement to a
locality rate under this subpart is the first day of the first pay
period beginning on or after January 1 of the next calendar year. Any
area removed by OMB from coverage within an MSA or CSA that serves as
the basis for defining a locality pay area must be reviewed by the
Federal Salary Council and the President's Pay Agent before a decision
is made regarding the locality pay status of that area.
(e) As provided in Sec. 531.205, when an employee becomes covered
by one or more different pay schedule(s) because the employee is
stationed at a new official worksite in a different geographic
location, the employee's pay (including a locality rate) must first be
converted to the applicable pay schedule(s) in the new location before
applying any other pay action (other than a general pay adjustment).
0
26. Add a new Sec. 531.610 to read as follows:
[[Page 31305]]
Sec. 531.610 Treatment of locality rate as basic pay.
A locality rate is considered to be an employee's rate of basic pay
for the purpose of computing or applying--
(a) Retirement deductions, contributions, and benefits under 5
U.S.C. chapters 83 and 84;
(b) Life insurance premiums and benefits under 5 U.S.C. chapter 87;
(c) Premium pay under 5 U.S.C. chapter 55, subchapter V, and 5 CFR
part 550, subparts A and I (including the computation of limitations on
premium pay);
(d) Severance pay under 5 U.S.C. 5595 and 5 CFR part 550, subpart
G;
(e) Advances in pay under 5 U.S.C. 5524a and 5 CFR part 550,
subpart B;
(f) Post differentials under 5 U.S.C. 5925(a) and danger pay
allowances under 5 U.S.C. 5928 for an employee temporarily working in a
foreign area for which the Department of State has established a danger
pay allowance, when the employee's official worksite is located in a
locality pay area;
(g) Recruitment, relocation, and retention incentives, supervisory
differentials, and extended assignment incentives under 5 U.S.C.
chapter 57, subchapter IV, and 5 CFR part 575;
(h) Performance-based cash awards under 5 U.S.C. 4505a and 5 CFR
part 451, subpart A, when such awards are computed as a percentage of
an employee's rate of basic pay;
(i) GS pay administration provisions (e.g., GS promotion
provisions) to the extent provided in subpart B of this part;
(j) Pay administration provisions for prevailing rate employees
which consider rates of basic pay under the GS pay system in setting
pay (except as otherwise provided in 5 CFR part 532), subject to the
requirement that, if the employee's actual locality rate would not
apply at the official worksite for the prevailing rate position, that
locality rate must be converted to a corresponding rate on the locality
rate schedule for that official worksite;
(k) Lump-sum payments for accumulated and annual leave under 5 CFR
part 550, subpart L;
(l) Grade and pay retention under 5 U.S.C. chapter 53, subchapter
VI, to the extent provided by 5 CFR part 536;
(m) Other provisions as specified in other statute or OPM
regulations; and
(n) Payments or benefits equivalent to those listed in this section
under other legal authority, as determined by the head of the agency or
other authorized official responsible for administering such payments
or benefits.
0
27. Add a new Sec. 531.611 to read as follows:
Sec. 531.611 Miscellaneous provisions.
(a) A locality rate may be paid only for those hours for which an
employee is in a pay status.
(b) Payment of, or an increase in, a locality rate is not an
equivalent increase in pay within the meaning of 5 U.S.C. 5335. (See
Sec. 531.407(c).)
(c) A locality rate is included in an employee's total
remuneration, as defined in 5 CFR 551.511(b), and straight time rate of
pay, as defined in 5 CFR 551.512(b), for the purpose of overtime pay
computations under the Fair Labor Standards Act of 1938, as amended.
(d) A reduction or termination of a locality rate under Sec.
531.609 is not an adverse action for the purpose of 5 CFR part 752,
subpart D, or an action under 5 CFR 930.214.
Subpart F--[Amended]
0
28. In addition to the preceding amendments to 5 CFR part 531, subpart
F (Sec. Sec. 531.601 through 531.611), remove the words ``locality
rate of pay'' and add in their place the words ``locality rate''
throughout the subpart, as amended.
Subpart G--[Removed and Reserved]
0
29. Remove and reserve subpart G, consisting of Sec. Sec. 531.701
through 531.705.
PART 532--PREVAILING RATE SYSTEMS
0
30. The authority citation for part 532 continues to read as follows:
Authority: 5 U.S.C. 5343, 5346; Sec. 532.707 also issued under
5 U.S.C. 552.
Subpart B--Prevailing Rate Determinations
0
31. In Sec. 532.415, amend paragraph (c) by removing the reference ``5
CFR 536.104(a)(3)'' and adding in its place ``5 CFR 536.301(a)(8)''.
PART 534--PAY UNDER OTHER SYSTEMS
0
32. The authority citation for part 534 is revised to read as follows:
Authority: 5 U.S.C. 1104, 3161(d), 5307, 5351, 5352, 5353, 5376,
5382, 5383, 5384, 5385, 5541, 5550a, and sec. 1125 of the National
Defense Authorization Act for FY 2004, Pub. L. 108-136, 117 Stat.
1638 (5 U.S.C. 5304, 5382, 5383, 7302; 18 U.S.C. 207).
Subpart D--Pay and Performance Awards Under the Senior Executive
Service
0
33. In Sec. 534.403, amend paragraph (b) by removing the reference ``5
CFR 536.104'' and adding in its place ``5 CFR part 536, subpart C''.
0
34. In Sec. 534.404, amend paragraph (h)(2) by removing the reference
``5 CFR 536.104'' and adding in its place ``5 CFR part 536, subpart
C''.
PART 536--GRADE AND PAY RETENTION
0
35. Revise the authority citation for part 536 to read as follows:
Authority: 5 U.S.C. 5361-5366; sec. 4 of the Performance
Management and Recognition System Termination Act of 1993, Pub. L.
103-89, 107 Stat. 981; Sec. 536.405 also issued under 5 U.S.C. 552,
Freedom of Information Act, Pub. L. 92-502; Sec. 536.308 also
issued under section 301(d)(2) of the Federal Workforce Flexibility
Act of 2004, Pub. L. 108-411, 118 Stat. 2305.
0
36. Revise subparts A and B to read as follows:
Subpart A--General Provisions
Sec.
536.101 Purpose.
536.102 Coverage.
536.103 Definitions.
536.104 Reasonable offer.
536.105 Comparing grades under different pay systems.
Sec. 536.101 Purpose.
This part contains OPM regulations for the administration of grade
and pay retention. This part supplements and implements the provisions
of 5 U.S.C. 5361-5366 and must be read together with those sections of
law. Under 5 U.S.C. 5362, an employee under a covered pay system who is
placed in a lower grade (e.g., as a result of a reduction in force or
when his or her position is reduced in grade as a result of a
reclassification) is entitled to retain the grade held immediately
before the reduction for a period of 2 years under the circumstances
prescribed in this part. Under 5 U.S.C. 5363, an employee whose rate of
basic pay otherwise would be reduced as a result of a management action
is entitled to retain his or her rate of basic pay under the
circumstances prescribed in this part.
Sec. 536.102 Coverage.
(a) Subject to the exclusions in paragraphs (b) through (e) of this
section, this part covers any employee who, at the time this part is
applied--
(1) Is in a covered pay system; or
(2) Is moving to a position under a covered pay system from a
position not under a covered pay system, as long as the individual was
an employee as defined in 5 CFR 536.103 while serving in the position
in a noncovered pay system.
[[Page 31306]]
(b) An agency may not provide grade or pay retention under this
part to an employee who--
(1) Is reduced in grade or pay for personal cause or at the
employee's request;
(2) Was employed on a temporary or term basis immediately before
the action causing the reduction in grade or pay;
(3) Does not satisfactorily complete the probationary period
prescribed by 5 U.S.C. 3321(a)(2), and, as a result, is removed from a
supervisory or managerial position;
(4) Is entitled to receive a saved rate of basic pay under 5 U.S.C.
3594(c) and 5 CFR 359.705 because of removal from the Senior Executive
Service and placement in a civil service position (other than a Senior
Executive Service position) under 5 U.S.C. 3594(b)(2);
(5) Moves from an Executive Schedule position paid under 5 U.S.C.
chapter 53, subchapter II, or a position whose rate of pay is fixed by
law at a rate equal to a rate for the Executive Schedule;
(6) Moves between positions not under a covered pay system or from
a position under a covered pay system to a position not under a covered
pay system;
(7) Moves to a nonappropriated fund position as described in 5
U.S.C. 2105(c) (except a position occupied by a prevailing rate
employee); or
(8) Moves from a nonappropriated fund position as described in 5
U.S.C. 2105(c) (except a position occupied by a prevailing rate
employee) to a position in a covered pay system, unless covered by
Sec. 536.302(a).
(c) An agency may not provide grade or pay retention under this
part based on the grade or rate of basic pay held by the employee
during a temporary promotion or temporary reassignment. However, a
temporary promotion or temporary reassignment does not affect an
employee's preexisting entitlement to grade or pay retention.
(d) An agency may not provide grade retention under subpart B of
this part to an employee who moves from a position not under a covered
pay system to a position under a covered pay system.
(e) An employee loses eligibility for or entitlement to grade or
pay retention under the conditions specified in Sec. Sec. 536.207,
536.208, and 536.308.
Sec. 536.103 Definitions.
For the purpose of this part:
Authorized agency official means the head of the agency or an
official who is authorized to act for the head of the agency in the
matter concerned.
Covered pay system means a covered pay schedule as defined in 5
U.S.C. 5361(5)--i.e., the General Schedule pay system established under
5 U.S.C. chapter 53, subchapter III; a prevailing rate system
established under 5 U.S.C. chapter 53, subchapter IV; or a special
occupational pay system established under 5 U.S.C. chapter 53,
subchapter IX. The various prevailing rate systems under 5 U.S.C.
chapter 53, subchapter IV, are considered separate systems if they have
separate job grading structures.
Employed on a temporary or term basis means employment under an
appointment having a definite time limitation or designated as
temporary or term.
Employee has the meaning given that term in 5 U.S.C. 2105, except
that employee also includes--
(1) An individual employed by the U.S. Postal Service or the Postal
Rate Commission who would be considered an employee under 5 U.S.C. 2105
but for the exclusion in section 2105(e); and
(2) An individual employed by a Department of Defense or Coast
Guard nonappropriated fund instrumentality (as described in 5 U.S.C.
2105(c)) who is moved without a break in service of more than 3 days
from employment in such an instrumentality to a position under a
covered pay system in the same agency.
FEPCA means the Federal Employees Pay Comparability Act of 1990
(section 529 of Pub. L. 101-509, November 5, 1990, as amended).
General Schedule or GS means the classification and pay system
established under 5 U.S.C. chapter 51 and subchapter III of chapter 53.
This term also refers to the pay schedule established under 5 U.S.C.
5332.
Highest applicable rate range means the rate range applicable to an
employee based on a given position of record and official worksite that
provides the highest rates of basic pay, excluding any retained rates.
For example, a rate range of special rates under 5 U.S.C. 5305 may
exceed an applicable locality rate range under 5 U.S.C. 5304 for
General Schedule employees. In certain circumstances, the highest
applicable rate range may consist of two types of pay rates from
different pay schedules--e.g., a range where special rates are higher
in the lower portion of the range and locality rates are higher in the
higher portion of the range.
Management action means an action (not for personal cause) by an
agency official not initiated or requested by an employee which may
adversely affect the employee's grade or rate of basic pay. However, an
employee's placement in or transfer to a position under a formal
employee development program established by an agency for recruitment
and employee advancement purposes (e.g., Career Intern Program) is
considered a management action even though the employee initiates or
requests such placement or transfer.
Official worksite means the official location of the employee's
position of record as determined under the rules of the applicable pay
system (e.g., 5 CFR 531.605 for General Schedule employees). Official
worksite is synonymous with the term ``official duty station'' as used
in 5 U.S.C. 5363(c).
OPM means the Office of Personnel Management.
Payable rate means the highest rate of basic pay to which an
employee is entitled based on the employee's position of record,
official worksite, and step (or relative position in range for a GM
employee) or, if applicable, a retained rate.
Pay schedule means a set of rate ranges established under a single
authority--i.e., the General Schedule, a law enforcement officer
special base rate schedule (for grades GS-3 through 10) under section
403 of FEPCA; a prevailing rate schedule (including a special schedule
or special rate schedule) under 5 U.S.C. chapter 53, subchapter IV; a
locality rate schedule under 5 U.S.C. 5304 based on GS rates; a
locality rate schedule under 5 U.S.C. 5304 based on law enforcement
officer special base rates (for grades GS-3 through 10); or a special
rate schedule under 5 U.S.C. 5305 or similar authority. A pay schedule
applies to or covers a defined category of employees based on
established coverage conditions (e.g., official worksite, occupation).
A pay schedule is considered to apply to or cover an employee who meets
the established coverage conditions even when a rate under that
schedule is not currently payable to the employee because of a higher
pay entitlement under another pay schedule.
Position of record means an employee's official position (defined
by grade or level, occupational series, employing agency, law
enforcement officer status, and any other condition that determines
coverage under a pay schedule (other than official worksite)), as
documented on the employee's most recent Notification of Personnel
Action (Standard Form 50 or equivalent) and the current position
description, excluding any position to which an employee is temporarily
detailed. A retained grade is considered to be part of an employee's
position of record even though the actual grade of the employee's
position is a lower grade, except as provided in Sec. 536.205(b). For
[[Page 31307]]
an employee whose change in official position is followed within 3
workdays by a reduction in force resulting in the employee's separation
before he or she is required to report for duty in the new position,
the position of record in effect immediately before the position change
is deemed to remain the position of record through the date of
separation.
Prevailing rate employee has the meaning given that term in 5
U.S.C. 5342(a)(2) and refers to an employee in a position covered by a
prevailing rate system or schedule established under 5 U.S.C. chapter
53, subchapter IV.
Rate of basic pay means the rate of pay fixed by law or
administrative action for the position held by an employee before any
deductions, including a General Schedule rate under 5 U.S.C. 5332; a
law enforcement officer special base rate under section 403 of FEPCA; a
special rate under 5 CFR part 530, subpart C, or similar payment under
other legal authority; a locality rate under 5 CFR part 531, subpart F,
or similar payment under other legal authority; a prevailing rate under
5 U.S.C. 5343; or a retained rate under this part, but excluding
additional pay of any other kind (such as premium payments,
differentials, and allowances).
Rate range or range means the range of rates of basic pay for a
grade within an established pay schedule, excluding any retained rate.
Reasonable offer means an offer that meets the conditions in Sec.
536.104.
Reduced in grade or pay at the employee's request means a reduction
in grade or rate of basic pay that is initiated by the employee for his
or her benefit, convenience, or personal advantage. A reduction in
grade or pay that is caused or influenced by a management action is not
considered to be at an employee's request, except that the voluntary
reduction in grade or pay of an employee in response to a management
action directly related to personal cause is considered to be at the
employee's request.
Reduced in grade or pay for personal cause means a reduction in
grade or rate of basic pay based on the conduct, character, or
unacceptable performance of an employee. In situations in which an
employee is reduced in grade or pay for inability to perform the duties
of his or her position because of a medical or physical condition
beyond the employee's control, the reduction in grade is not considered
to be for personal cause.
Reorganization means the planned elimination, addition,
redistribution, or restructuring of functions or duties either wholly
within an agency or between agencies.
Representative rate means--
(1) For the purpose of comparing grades that are under different
covered pay systems under Sec. 536.105 and after applying any
applicable geographic conversion under Sec. 536.105(b) for positions
with different official worksites--
(i) The highest rate of basic pay that applies to the fourth step
of the grade for a position covered by the General Schedule; and
(ii) The highest rate of basic pay that applies to the second step
of the grade of a position under a regular prevailing rate system
established under 5 U.S.C. chapter 53, subchapter IV, or, in the case
of a prevailing rate position with a single rate, the single rate of
basic pay for that position; and
(2) For the purpose of comparing grades or levels of work in making
reasonable offer determinations when one of the grades or levels of
work is not under a covered pay system and after applying any
applicable geographic conversion rules under Sec. 536.105(b) for
positions with different official worksites--
(i) The maximum payable rate of basic pay that applies to the grade
of a position covered by the General Schedule;
(ii) The maximum payable rate of basic pay that applies to the
grade of a position under a regular prevailing rate system established
under 5 U.S.C. chapter 53, subchapter IV, or in the case of a
prevailing rate position with a single rate, the single rate of basic
pay for that position; and
(iii) The maximum payable rate of basic pay that applies to the
grade or level of work in the case of a position not covered by
paragraph (2)(i) or (ii) of this definition. In the case of a position
with a single rate under such a schedule, the single rate of basic pay
for that position is the representative rate.
Retained rate means a rate above the maximum rate of the employee's
highest applicable rate range that is payable under subpart C of this
part.
Temporary promotion means a promotion that has a definite time
limitation or is otherwise designated as temporary when the affected
employee is informed in advance.
Temporary reassignment means a reassignment that has a definite
time limitation or is otherwise designated as temporary when the
affected employee is informed in advance.
Where different pay schedules apply means, in the context of
applying the geographic conversion rule, that an employee's official
worksite is changed to a new location that would cause the employee to
lose or gain coverage under a location-based pay schedule if the
employee were to remain in the same position of record.
Sec. 536.104 Reasonable offer.
(a) For the purpose of determining whether grade retention
eligibility or entitlement must be terminated under Sec. 536.207 or
536.208, the offer of a position is a reasonable offer if the
position's grade is equal to or higher than the retained grade and if
all the conditions in paragraph (c) of this section are met. If the
offered position is in a different pay system, Sec. 536.105 must be
applied to determine whether the grade of the offered position is equal
to or greater than the retained grade.
(b) For the purpose of determining whether pay retention
eligibility or entitlement must be terminated under Sec. 536.308, the
offer of a position is a reasonable offer if the employee's rate of
basic pay in the position would be equal to or greater than the rate to
which the employee is or would be entitled under the pay retention
provisions and if all the conditions in paragraph (c) of this section
are met.
(c) An offer of a position must meet the following additional
conditions to qualify as a reasonable offer:
(1) The offer must be in writing and must include an official
position description of the offered position;
(2) The offer must inform the employee that entitlement to grade or
pay retention will terminate if the offer is declined and that the
employee may appeal the reasonableness of the offer as provided in
Sec. 536.402;
(3) The offered position must be of equal or greater tenure than
the employee's position before the action resulting in the grade or pay
retention entitlement;
(4) The offered position must be full-time, unless the employee's
position immediately before the action resulting in entitlement to
grade or pay retention was less than full-time, in which case the
offered position must have a work schedule providing for no fewer hours
of work per week or per pay period than the position held before the
action; and
(5) The offered position must be in the same commuting area as the
employee's position immediately before the offer, unless the employee
is subject to a mobility agreement or a published agency policy that
requires employee mobility.
Sec. 536.105 Comparing grades under different pay systems.
(a) General. An agency must compare the representative rates (as
defined in
[[Page 31308]]
Sec. 536.103) of the applicable grades to determine whether a grade of
a position is equal to, higher than, or lower than the grade of another
position when--
(1) Determining eligibility for grade retention upon movement from
a position under a covered pay system to a lower-graded position under
a different covered pay system (including determinations under Sec.
536.203 that involve different covered pay systems);
(2) Determining whether grade retention eligibility is lost or
grade retention is terminated when an employee is placed in a lower-
graded position under a different covered pay system and the action is
taken for personal cause or at the employee's request;
(3) Determining whether grade retention eligibility is lost or
grade retention is terminated based on movement to a position under a
different covered pay system with an equal or higher grade;
(4) Determining whether grade retention eligibility is lost or
grade retention is terminated based on declination of a reasonable
offer of a position under a different pay system with an equal or
higher grade; and
(5) Determining whether pay retention eligibility is lost or a
retained rate is terminated when an employee is placed in a lower-
graded position under a different covered pay system and the action is
taken for personal cause or at the employee's request.
(b) Geographic conversion. When comparing positions under paragraph
(a) of this section which are stationed in different geographic
locations where different pay schedules apply, the representative rate
of the employee's existing position of record (as in effect before the
movement to a position in a different pay system) must be determined as
if the official worksite of that position of record were the same as
the official worksite of the new or offered position of record.
Geographic conversion is not necessary for the purpose of comparing
grades if an employee is being moved to (or given a reasonable offer
of) a position under the same covered pay system (i.e., same grading
structure).
Subpart B--Grade Retention
Sec.
536.201 Mandatory grade retention.
536.202 Optional grade retention.
536.203 Additional eligibility requirements for grade retention.
536.204 Period of grade retention.
536.205 Applicability of retained grade.
536.206 Determining an employee's rate of basic pay under grade
retention.
536.207 Loss of eligibility for grade retention.
536.208 Termination of grade retention.
Sec. 536.201 Mandatory grade retention.
(a) Subject to the requirements in this section and in Sec. Sec.
536.102 and 536.203, an agency must provide grade retention to an
employee who moves from a position under a covered pay system to a
lower-graded position under a covered pay system as a result of--
(1) Reduction in force procedures, or
(2) A reclassification process.
(b) An agency must apply Sec. 536.105 in determining whether a
position under a different covered pay system is a lower-graded
position.
(c) An employee's movement to a lower-graded position is considered
to be the result of reduction in force procedures when the employee has
received a specific reduction in force notice and--
(1) The employee is placed in the position offered in the notice;
or
(2) The employee is placed in a position other than that offered in
the notice but in the same agency, if the position was offered in
writing and at the initiative of management.
(d) An employee's movement to a lower-graded position is considered
to be the result of a reclassification process when--
(1) The employee remains in his or her position after it is
reclassified; or
(2) The employee is placed in a different position in the same
agency before the effective date of the reclassification action, if the
position was offered in writing and at the initiative of management
after the employee received a specific written notice that the position
would be reclassified to a lower grade.
(e) Notwithstanding paragraph (a) of this section, an agency must
provide grade retention to an employee who moves without a break in
service of more than 3 days from a position in a Department of Defense
or Coast Guard nonappropriated fund instrumentality (as defined in 5
U.S.C. 2105(c)) to a position under a covered pay system in the same
agency.
Sec. 536.202 Optional grade retention.
(a) Subject to the requirements in Sec. Sec. 536.102 and 536.203,
an authorized agency official may provide grade retention to an
employee moving from a position under a covered pay system to a lower-
graded position under a covered pay system when--
(1) Management announces a reorganization or reclassification
decision in writing (including a general notice or a specific notice)
that may or would affect the employee; and
(2) The employee moves to a lower-graded position (either at the
employee's initiative or in response to a management-initiated offer)
on or before the date the announced reorganization or reclassification
is effected.
(b) An agency must apply Sec. 536.105 in determining whether a
position under a different covered pay system is a lower-graded
position.
(c) When an employee is offered a position with grade retention
under this section in anticipation of a reduction in grade, the agency
must inform the employee in writing that acceptance of the position is
not required and that declination of the offer will not affect the
employee's entitlement to grade retention under Sec. 536.201 if the
agency actually moves the employee to the lower-graded position.
(d) Notwithstanding paragraph (a) of this section, an agency may
provide grade retention to an employee who is moved without a break in
service of more than 3 days from a position in a Department of Defense
or Coast Guard nonappropriated fund instrumentality (as defined in 5
U.S.C. 2105(c)) to a position under a covered pay system in the same
agency.
Sec. 536.203 Additional eligibility requirements for grade retention.
(a) An employee is eligible for grade retention under Sec.
536.201(a)(1) only if the employee has served for at least 52
consecutive weeks in one or more positions under a covered pay system
at one or more grades higher than the grade of the position in which
the employee is being placed. Such service is deemed to include service
performed by an employee of a nonappropriated fund instrumentality of
the Department of Defense or the Coast Guard (as defined in 5 U.S.C.
2105(c)) who is moved to a position in the civil service employment
system of the Department of Defense or the Coast Guard, respectively,
without a break in service of more than 3 days.
(b) An employee is eligible for grade retention under Sec.
536.201(a)(2) based on a reclassification of his or her position only
if, immediately before the reduction in grade, that position was
classified at the existing grade or a higher grade for a continuous
period of at least 1 year.
(c) An employee is eligible for grade retention under Sec. 536.202
only if, immediately before being placed in the lower grade, the
employee has served for at least 52 consecutive weeks in one or more
positions under a covered pay system at one or more grades higher than
that lower grade. Such service is deemed to include service performed
by an employee of a nonappropriated fund instrumentality of the
Department of
[[Page 31309]]
Defense or the Coast Guard (as defined in 5 U.S.C. 2105(c)) who is
moved to a position in the civil service employment system of the
Department of Defense or the Coast Guard, respectively, without a break
in service of more than 3 days.
(d) Eligibility for grade retention under Sec. 536.201 or 536.202
ceases under the conditions specified in Sec. 536.207.
Sec. 536.204 Period of grade retention.
(a) Unless grade retention is terminated under Sec. 536.208, an
employee is entitled to retain the grade held immediately before the
action that provides entitlement to grade retention for 2 years
beginning on the date the employee is placed in the lower-graded
position.
(b) During the 2-year period of grade retention, if an agency
further reduces an employee in grade under circumstances also entitling
the employee to grade retention, the employee must continue to retain
the previous retained grade for the remainder of the first 2-year
period. At the end of the first 2-year period, the employee is entitled
to retain the grade of the position from which the second reduction in
grade was made for 2 years following the effective date of the second
reduction in grade.
(c) Notwithstanding Sec. 536.207(a)(1), grade retention continues
to apply to an employee serving under an interim appointment made under
5 CFR 772.102 for the duration of the original 2-year grade retention
period if the employee's grade was retained under this part in the
appointment immediately preceding the interim appointment.
Sec. 536.205 Applicability of retained grade.
(a) Except as provided in paragraph (b) of this section, an agency
must treat an employee's retained grade as the employee's grade for all
purposes, including pay and pay administration, premium pay,
retirement, life insurance, and eligibility for training. If the
employee's actual position of record is under a different covered pay
system than the covered pay system associated with the retained grade,
the agency also must treat the employee as being under the covered pay
system associated with the retained grade for the same purposes.
(b) An agency may not use an employee's retained grade--
(1) In any reduction in force procedure;
(2) To determine whether an employee has been reduced in grade for
the purpose of terminating grade or pay retention (i.e., based on
personal cause or at the employee's request);
(3) To determine whether an employee retains status as a GM
employee (as defined in 5 CFR 531.203); or
(4) To determine whether an employee is exempt or nonexempt from
the Fair Labor Standards Act of 1938, as amended.
Sec. 536.206 Determining an employee's rate of basic pay under grade
retention.
(a) General. (1) When an employee becomes entitled to grade
retention or becomes covered by one or more different pay schedules
(because of a change in the employee's position of record, a change in
the employee's official worksite, or the establishment of a new pay
schedule) during a period of grade retention, the agency must apply the
rules in this section to determine the employee's rate of basic pay.
(2) This section does not apply to an employee whose entitlement to
grade retention is terminated under one of the conditions in Sec.
536.208. (See Sec. 536.208(d).)
(b) Preexisting rate within a range. If an employee is entitled to
a rate of basic pay within the applicable rate range before the action
resulting in application of this section, the employee is entitled to
the rate(s) of basic pay in the applicable pay schedule(s) for the
employee's position of record after the action (including the retained
grade) which correspond to the employee's grade and step (or rate)
immediately before the action. The employee's payable rate is the
corresponding rate in the highest applicable rate range for the
employee's position of record after the action (including the retained
grade). If an employee's rate of basic pay otherwise would be reduced
because of placement under a lower-paying pay schedule (excluding any
reduction that results from a geographic conversion), the employee
would be eligible for pay retention under subpart C of this part to the
same extent as other employees holding the same position of record
whose actual grade is the same as the employee's retained grade.
(c) Preexisting retained or saved rate. (1) If an employee is
entitled to a retained rate immediately before the action resulting in
application of this section, the agency must determine the employee's
payable rate of basic pay under Sec. Sec. 536.303 and 536.304.
(2) If an employee is entitled to a saved rate under 5 CFR 359.705,
the agency must determine the employee's payable rate of basic pay
under that section.
(d) Order of processing pay actions. When an action resulting in
application of this section takes effect on the same effective date as
other pay actions that affect an employee's rate of basic pay (e.g.,
within-grade increase), the actions will be processed in the order
prescribed in the rules governing the covered pay system of the
employee's position of record (e.g., 5 CFR 531.206 for GS positions and
5 CFR 532.413 for Federal Wage System positions).
Sec. 536.207 Loss of eligibility for grade retention.
(a) Eligibility for grade retention as a result of an entitlement
under Sec. 536.201 ceases if any of the following conditions occurs at
any time after the employee receives written notice of the reduction in
grade, but before the commencement of the 2-year period of grade
retention:
(1) The employee has a break in service of 1 workday or more;
(2) The employee is reduced in grade for personal cause or at the
employee's request (based on the actual grade of the employee's
position rather than the employee's retained grade and, when a movement
to a different covered pay system is involved, a comparison of
representative rates under Sec. 536.105);
(3) The employee moves to a position under a covered pay system
with a grade that is equal to or higher than the retained grade (as
determined under Sec. 536.105), excluding a temporary promotion;
(4) The employee declines a reasonable offer of a position with a
grade equal to or higher than the retained grade (as determined under
Sec. Sec. 536.104 and 536.105);
(5) The employee elects in writing to terminate the benefits of
grade retention; or
(6) The employee moves to a position not under a covered pay
system.
(b) Eligibility for grade retention as a result of entitlement
under Sec. 536.202 ceases if any of the following conditions occurs at
any time after management informs the employee of an impending
reorganization or reclassification that will or could result in a
reduction in grade, but before the commencement of the 2-year period of
grade retention:
(1) Any of the conditions listed in paragraph (a) of this section
except that an employee's request for placement in a lower-graded
position, in lieu of displacing another employee at his or her grade
under reduction in force procedures, is not a declination of a
reasonable offer for grade retention purposes; or
(2) The employee fails to enroll in, or to comply with reasonable
written requirements established to assure full consideration under, a
program providing priority consideration for placement.
[[Page 31310]]
(c) If an employee loses eligibility for grade retention under this
section, the employee's rate of basic pay must be set in accordance
with the pay-setting rules and pay rates applicable to the employee's
position of record (e.g., 5 CFR part 531, subpart B, for GS positions).
An employee is not eligible for pay retention under subpart C of this
part based on an action that provided eligibility for grade retention
if the employee elects to terminate mandatory eligibility for grade
retention under paragraph (a)(5) of this section.
Sec. 536.208 Termination of grade retention.
(a) Grade retention under Sec. 536.201 terminates if any of the
conditions listed in Sec. 536.207(a) occurs after commencement of the
2-year period of grade retention.
(b) Grade retention under Sec. 536.202 terminates if any of the
conditions listed in Sec. 536.207(b) occurs after the commencement of
the 2-year period of grade retention.
(c) Termination of grade retention benefits takes effect--
(1) At the end of the day before placement if the termination is
the result of the employee's placement in another position; or
(2) At the end of last day of the pay period in which the
employee--
(i) Declines a reasonable offer;
(ii) Elects to terminate grade retention benefits; or
(iii) Fails to enroll in, or comply with reasonable written
requirements established to assure full consideration under, a program
providing priority consideration for placement.
(d) If an employee's entitlement to grade retention terminates
under this section, the employee's rate of basic pay must be set in
accordance with the pay-setting rules and pay rates applicable to the
employee's position of record (e.g., 5 CFR part 531, subpart B, for GS
positions). An employee is not entitled to pay retention under subpart
C of this part based on a reduction in basic pay resulting from waiver
of the employee's grade retention entitlement under Sec.
536.207(a)(5).
0
37. Redesignate subpart C as subpart D; revise the title of
redesignated subpart D to read ``Appeals and Miscellaneous
Provisions''; remove Sec. Sec. 536.305, 536.306, and 536.308; and
redesignate Sec. Sec. 536.301, 536.302, 536.303, 536.304, and 536.307
as Sec. Sec. 536.401, 536.402, 536.403, 536.404, and 536.405,
respectively.
0
38. In newly redesignated subpart D--
0
a. In newly redesignated Sec. 536.403, remove ``Sec. 536.304'' and
add in its place ``Sec. 536.404''; and
0
b. In newly redesignated Sec. 536.405(b), remove ``Sec. 297.204(c)''
and add in its place ``Sec. 297.205''.
0
39. Add a new subpart C to read as follows:
Subpart C--Pay Retention
Sec.
536.301 Mandatory pay retention.
536.302 Optional pay retention.
536.303 Geographic conversion.
536.304 Determining an employee's pay retention entitlement.
536.305 Adjusting an employee's retained rate when a pay schedule is
adjusted.
536.306 Limitation on retained rates.
536.307 Treatment of a retained rate as basic pay for other
purposes.
536.308 Loss of eligibility for or termination of pay retention.
536.309 Converting retained rates on May 1, 2005.
Sec. 536.301 Mandatory pay retention.
(a) Subject to the requirements in Sec. 536.102 and this section,
an agency must provide pay retention to an employee in a position under
a covered pay system whose payable rate of basic pay otherwise would be
reduced (after application of any applicable geographic conversion
under Sec. 536.303(a)) as a result of--
(1) The expiration of the 2-year period of grade retention under
subpart B of this part;
(2) A reduction in force or reclassification action that places an
employee in a lower-graded position when the employee does not meet the
eligibility requirements for grade retention under subpart B of this
part;
(3) A management action that places an employee in a non-special
rate position or in a lower-paid special rate position from a special
rate position;
(4) A management action that places an employee under a different
pay schedule;
(5) A management action that places an employee in a formal
employee development program generally utilized Governmentwide, such as
upward mobility, apprenticeship, and career intern programs;
(6) The application of the promotion rule for GS employees under 5
U.S.C. 5334(b) and 5 CFR 531.214 when the employee's payable rate of
basic pay after promotion exceeds the maximum rate of the highest
applicable rate range;
(7) The application of the promotion rule for prevailing rate
employees under 5 CFR 532.407 when the employee's payable rate of basic
pay after promotion exceeds the maximum scheduled rate of the grade, as
described in 5 CFR 532.407(b);
(8) A reduction or elimination of scheduled rates, special
schedules, or special rate schedules, excluding--
(i) A statutory reduction in scheduled rates of pay under the
General Schedule, including a reduction authorized under 5 U.S.C.
5303(b); or
(ii) A statutory reduction in a prevailing rate schedule
established under 5 U.S.C. chapter 53, subchapter IV, and 5 CFR part
532.
(b) If an employee's official worksite changes in conjunction with
an action that may entitle the employee to pay retention under
paragraph (a) of this section, the agency must apply the geographic
conversion rule in Sec. 536.303(a) before determining whether an
employee's rate of basic pay otherwise would be reduced.
(c) An employee is considered ``placed'' under paragraph (a)(2),
(3), (4), and (5) of this section only when the employee remains in a
position in the same agency. Optional pay retention under Sec. 536.302
may apply when an employee transfers to a different agency as a result
of a reduction in force or reclassification action or is selected by a
different agency to fill a position under a formal employee development
program, if all other qualifying conditions are met.
(d) Eligibility for pay retention under this section ceases under
the conditions specified in Sec. 536.308.
Sec. 536.302 Optional pay retention.
(a) Subject to the requirements in Sec. 536.102 and this section,
an authorized agency official may provide pay retention to an employee
not entitled to pay retention under Sec. 536.301, but whose payable
rate of basic pay otherwise would be reduced (after application of any
applicable geographic conversion under Sec. 536.303(a)) as the result
of a management action. This includes a management action to move an
employee's position, without a break in service of more than 3 days,
from a Department of Defense or Coast Guard nonappropriated fund
instrumentality (as defined in 5 U.S.C. 2105(c)) to a position under a
covered pay system in the same agency.
(b) If an employee's official worksite changes in conjunction with
an action that may entitle the employee to pay retention under
paragraph (a) of this section, the agency must apply the geographic
conversion rule in Sec. 536.303(a) before determining whether an
employee's rate of basic pay otherwise would be reduced.
(c) Eligibility for pay retention under this section ceases under
the conditions specified in Sec. 536.308.
[[Page 31311]]
Sec. 536.303 Geographic conversion.
(a) Geographic conversion at time of action that may provide
initial entitlement to pay retention. If, in conjunction with a pay
action that may entitle the employee to pay retention under Sec. Sec.
536.301 or 536.302, an employee's official worksite is changed to a new
location where different pay schedules apply, the agency must convert
the employee's rate(s) of basic pay to the applicable pay schedule(s)
in the new location before applying the pay retention rules in this
subpart or any other simultaneous pay action (other than a general pay
adjustment). The agency must identify the highest applicable rate range
that would apply to the employee's position of record before the pay
action as if that position were stationed at the new official worksite
and determine the employee's converted payable rate of basic pay based
on the step (or rate) in that range that corresponds to the employee's
step (or rate) before the pay action. A reduction in an employee's
payable rate of basic pay resulting from this geographic conversion is
not a basis for entitlement to pay retention. The pay retention rules
in this subpart must be applied as if the employee's payable rate of
basic pay after geographic conversion is the employee's existing
payable rate of basic pay in effect immediately before the action.
(b) Geographic conversion when a retained rate employee's official
worksite is changed. When an employee is receiving a retained rate and
the employee's official worksite is changed to a new location where
different pay schedules apply, the agency must apply the following
rules (after applying any simultaneous general pay adjustment under
Sec. 536.305) to derive the converted retained rate that will be used
as the existing retained rate in determining the employee's pay
retention entitlement in the new position of record and at the new
official worksite:
(1) Identify the maximum rate for the highest applicable rate range
that applies to the employee's former position of record based on the
former official worksite;
(2) Identify the maximum rate for the highest applicable rate range
that would apply to the employee's former position of record if the
employee were stationed at the official worksite for the new position
of record;
(3) Divide the maximum rate identified in paragraph (b)(2) of this
section by the maximum rate identified in paragraph (b)(1) of this
section and round the result to the fourth decimal place; and
(4) Multiply the factor resulting from paragraph (b)(3) of this
section by the employee's former retained rate and round to the nearest
whole dollar (for an annual rate) or the nearest whole cent (for an
hourly rate) to derive the employee's converted retained rate at the
new official worksite.
Sec. 536.304 Determining an employee's pay retention entitlement.
(a) General. (1) When an employee becomes entitled to pay retention
under Sec. 536.301 or 536.302 or undergoes a change in his or her
position of record or pay schedule while receiving a retained rate
(when the terminating conditions for pay retention under Sec. 536.308
do not apply), the agency must determine the employee's pay retention
entitlement following the rules in this section.
(2) Any general pay adjustment (including a retained rate
adjustment under Sec. 536.305) that takes effect on the same date as
an action described in paragraph (a)(1) of this section must be
processed first, before any other pay action and before applying the
rules in paragraphs (a)(3), (a)(4), (b), or (c) of this section, as
applicable.
(3) If the location of an employee's official worksite changes in
conjunction with an action that may provide initial entitlement to pay
retention, the agency must apply the geographic conversion rule under
Sec. 536.303(a) before applying the rules in paragraph (b) of this
section. The converted rate of basic pay must be treated as the
employee's existing payable rate of basic pay in applying those rules.
(4) If the location of an employee's official worksite changes
while he or she is receiving a retained rate, the agency must apply the
geographic conversion rule under Sec. 536.303(b) before applying the
rules in paragraph (c) of this section. The converted retained rate
must be treated as the employee's existing retained rate in applying
those rules.
(5) When an employee's pay retention entitlement is established or
redetermined under this section on the same effective date as other pay
actions that affect an employee's rate of basic pay, the actions must
be processed in the order prescribed under the rules governing the
covered pay system of the employee's position of record (e.g., 5 CFR
531.206 for GS positions and 5 CFR 532.413 for Federal Wage System
positions).
(6) In applying this section, an agency must convert an employee's
existing annual rate of pay to an hourly rate of pay if the employee's
new position is under a pay system that uses only hourly rates. An
agency must convert an employee's existing hourly rate of pay to an
annual rate of pay if the employee's new position is under a pay system
that uses annual rates of pay.
(b) Determining initial pay retention entitlement. When an employee
becomes entitled to pay retention under Sec. 536.301 or 536.302, the
agency must determine the employee's pay retention entitlement under
the following rules (subject to the requirements in paragraph (a) of
this section):
(1) If an employee's existing payable rate of basic pay is less
than or equal to the maximum rate of the highest applicable rate range
for the grade of the employee's position of record immediately after
the event causing the pay retention entitlement, the employee is
entitled to the lowest rate of basic pay in such rate range that equals
or exceeds the employee's existing payable rate of basic pay. If an
employee's payable rate of basic pay is set at or below the maximum
rate of the highest applicable rate range, pay retention under this
subpart ceases to apply to the employee.
(2) If the employee's existing payable rate of basic pay is greater
than the maximum rate of the highest applicable rate range for the
grade of the employee's position immediately after the event causing
the pay retention entitlement, the employee is entitled to a retained
rate equal to the employee's existing payable rate of basic pay,
subject to the limitations in paragraph (b)(3) of this section.
(3) A newly established retained rate may not exceed--
(i) 150 percent of the maximum payable rate of basic pay of the
highest applicable rate range for the grade of the employee's position
of record; or
(ii) The Executive Level IV maximum rate limitation established
under Sec. 536.306.
(4) In applying this section for an employee who becomes eligible
for pay retention while serving on a temporary promotion or temporary
reassignment, the agency must use the rate of basic pay the employee
would have received if the temporary promotion or temporary
reassignment had not occurred.
(c) Redetermining pay retention entitlement at time of change in
position or pay schedule. When an employee receiving a retained rate
undergoes a change in position or pay schedule that results in a new
highest applicable rate range (and when the terminating conditions for
pay retention under Sec. 536.308(a)(1), (3), (4), and (5) do not
apply), the agency must determine the employee's pay retention
entitlement under the following rules (subject to the
[[Page 31312]]
requirements in paragraph (a) of this section):
(1) If the employee's grade and pay system are not changing and if
the employee's existing retained rate is less than or equal to the
maximum rate of the highest applicable rate range for the employee's
position of record immediately after the position or schedule change,
the employee is entitled to the maximum rate of the highest applicable
rate range, and pay retention ceases to apply.
(2) If the employee's grade and pay system are not changing and if
the employee's existing retained rate is greater than the maximum rate
on the highest applicable rate range for the employee's position of
record immediately after the position or schedule change, the employee
continues to be entitled to the existing retained rate.
(3) If the employee's pay system is not changing but the employee
is being promoted to a higher-graded position, the agency must apply
the applicable promotion rules to determine the employee's payable rate
of basic pay (e.g., the rules in 5 CFR 531.214(d)(5) for GS positions
and 5 CFR 532.407 for Federal Wage System positions). When the
resulting rate is equal to or greater than the existing retained rate,
pay retention ceases to apply. When the resulting rate is less than the
existing retained rate, the employee continues to be entitled to the
existing retained rate.
(4) If the employee is moving to a position under a different
covered pay system whose grade has a higher representative rate, the
agency must apply the applicable pay administration rules to determine
the employee's payable rate of basic pay (e.g., part 531, subpart B,
for GS positions and part 532 for Federal Wage System provisions). When
the resulting rate is equal to or greater than the existing retained
rate, pay retention ceases to apply to the employee. When the resulting
rate is less than the existing retained rate, the employee continues to
be entitled to the existing retained rate.
(5) In applying this section to a retained rate employee who
receives a temporary promotion or temporary reassignment, the temporary
promotion or temporary reassignment is not a basis for permanently
terminating an employee's pay retention entitlement. When the temporary
promotion or temporary reassignment ends, the employee's pay retention
entitlement will be determined as if the employee had not received the
temporary promotion or temporary reassignment.
(6) Notwithstanding Sec. 536.308(a)(1), an agency must continue a
retained rate entitlement for an employee serving under an interim
appointment made under 5 CFR 772.102 if the employee's pay was retained
under this subpart under the appointment immediately preceding the
interim appointment.
Sec. 536.305 Adjusting an employee's retained rate when a pay
schedule is adjusted.
(a)(1) Except as otherwise provided in this section, when the
maximum rate of the highest applicable rate range for an employee's
position of record is increased while the employee is receiving a
retained rate, the employee is entitled to 50 percent of the amount of
the increase in that maximum rate, subject to the maximum rate
limitation in Sec. 536.306. This 50-percent adjustment rule applies
only when the maximum rate increases are attributable to the adjustment
of the employee's existing pay schedule or the establishment of a new
pay schedule that covers the employee's existing position of record.
(2) As provided in 5 CFR 531.206, a retained rate adjustment under
paragraph (a)(1) of this section is a general pay adjustment that must
be applied before any geographic conversion under Sec. 536.303(b) or
any other simultaneous pay action. The retained rate adjustment under
paragraph (a)(1) of this section must be determined based on the
employee's position of record and official worksite as in effect
immediately before the effective date of the adjustment.
(3) Consistent with 5 U.S.C. 5363(c), a change in the maximum rate
of the highest applicable rate range based on a change in the
employee's official worksite is not considered in applying paragraph
(a)(1) of this section. The employee's new retained rate must be
determined under the geographic conversion rule in Sec. 536.303(b).
(4) Paragraph (a)(1) of this section does not apply to an increase
in an employee's highest applicable rate range that results from a
change in the employee's position of record. Such an increase is not
attributable to an adjustment in the pay schedule applicable to the
employee's position and thus is not an increase as described in 5
U.S.C. 5363(b)(2)(B).
(b) When a pay schedule adjustment causes an employee's retained
rate (after any adjustment under this section) to become equal to or
lower than the maximum rate of the highest applicable rate range for
the grade of the employee's position, the employee is entitled to the
maximum rate of the highest applicable rate range, and pay retention
ceases to apply.
Sec. 536.306 Limitation on retained rates.
(a) A retained rate may not at any time exceed the rate payable for
level IV of the Executive Schedule.
(b) When an employee's retained rate is limited under this section,
an agency may not apply this subpart or the provisions of any other law
or regulation to the rate of basic pay the employee would have received
but for this limitation.
Sec. 536.307 Treatment of a retained rate as basic pay for other
purposes.
(a) A retained rate is considered to be an employee's rate of basic
pay for the purpose of computing or applying--
(1) Retirement deductions, contributions, and benefits under 5
U.S.C. chapters 83 and 84;
(2) Life insurance premiums and benefits under 5 U.S.C. chapter 87;
(3) Premium pay under 5 U.S.C. chapter 55, subchapter V, and 5 CFR
part 532 and part 550, subparts A and I;
(4) Severance pay under 5 U.S.C. 5595 and 5 CFR part 550, subpart
G;
(5) Post differentials under 5 U.S.C. 5925 and danger pay
allowances under 5 U.S.C. 5928;
(6) Nonforeign area cost-of-living allowances and post
differentials under 5 U.S.C. 5941(a) and 5 CFR part 591, subpart B;
(7) Lump-sum payments for accumulated and annual leave under 5 CFR
part 550, subpart L;
(8) General Schedule pay administration provisions (e.g., promotion
increases) to the extent provided in 5 CFR part 531, subpart B;
(9) Pay administration provisions for prevailing rate employees to
the extent provided in 5 CFR part 532;
(10) Other provisions as specified in other statutes or OPM
regulations; and
(11) Payments and benefits equivalent to those listed in this
section under other legal authorities, as determined by the head of the
agency or other authorized official responsible for administering such
payments or benefits.
(b) For the purpose of applying other laws and regulations not
listed in paragraph (a) of this section to an employee receiving a
retained rate, the employee's rate of basic pay is deemed to be the
applicable maximum rate of basic pay for the employee's position of
record (e.g., the maximum rate of basic pay for a locality rate range
or special rate range, as applicable, for the purpose of computing a
percentage-based award under 5 CFR 451.104(g)).
[[Page 31313]]
Sec. 536.308 Loss of eligibility for or termination of pay retention.
(a) Eligibility for pay retention ceases if any of the following
conditions occurs at any time after the employee has received written
notification that the employee's pay will be reduced, and entitlement
to pay retention terminates if any of the following conditions occurs
after the commencement of pay retention:
(1) The employee has a break in service of 1 workday or more;
(2) The employee is entitled to a rate of basic pay under a covered
pay system which is equal to or greater than the employee's retained
rate (after applying any applicable geographic conversion under
paragraph (b) of this section), excluding a rate resulting from a
temporary promotion or temporary reassignment;
(3) The employee declines a reasonable offer (as determined under
Sec. 536.104) of a position in which the employee's rate of basic pay
would be equal to or greater than the employee's retained rate (after
applying any applicable geographic conversion under paragraph (b) of
this section);
(4) The employee is reduced in grade for personal cause or at the
employee's request (based on the actual grade of the employee's
position rather than the employee's retained grade and, when a movement
to a different covered pay system is involved, a comparison of
representative rates under Sec. 536.105); or
(5) The employee moves to a position not under a covered pay
system.
(b) When the rate comparison required by paragraph (a)(2) or (3) of
this section involves a new or offered position that is located in a
different geographic area where different pay schedules would apply to
the employee's existing position of record, the agency must convert the
employee's existing retained rate using the geographic conversion rules
in Sec. 536.303(b) before making the rate comparison. The converted
retained rate must be compared to the payable rate of basic pay for the
new or offered position in determining whether the rate of basic pay
for an offered position is equal to or higher than the employee's
retained rate.
(c) Termination of pay retention benefits takes effect--
(1) At the end of the day before placement if the termination is
the result of the employee's placement in another position; or
(2) At the end of the last day of the pay period in which the
employee declines a reasonable offer.
(d) If an employee's eligibility for pay retention ceases or
entitlement to pay retention terminates under this section, the
employee's rate of basic pay must be set using the pay-setting rules
applicable to the employee's position of record (e.g., 5 CFR part 531,
subpart B, for GS positions). However, when an employee's retained rate
is terminated under paragraph (a)(2) or (3) of this section and the
employee's grade is unchanged, the employee's payable rate of basic pay
may not be set below the maximum rate of the highest applicable rate
range.
Sec. 536.309 Converting retained rates on May 1, 2005.
(a) Consistent with section 301(d)(2) of Public Law 108-411, an
agency must convert an employee's retained rate or similar rate, as
described in paragraph (b) of this section, to a retained rate under
this subpart on May 1, 2005. The new retained rate must equal the
retained rate in effect on April 30, 2005, as adjusted to include any
applicable locality payment under 5 U.S.C. 5304 or similar provision of
law.
(b) This section applies to an employee under a covered pay system
who, on April 30, 2005, was receiving--
(1) A retained rate under 5 U.S.C. 5363;
(2) A rate paid under the authority of 5 U.S.C. 5334(b) or 5 U.S.C.
5362 which was greater than the maximum rate of basic pay payable for
the grade of the employee's position of record; or
(3) A continued rate of pay under 5 CFR part 531, subpart C or G
(as contained in the January 1, 2005, edition of title 5, Code of
Federal Regulations, parts 1 to 699) which was greater than the maximum
rate of basic pay payable for the grade of the employee's position.
(c) The conversion rules in this section must be applied before any
simultaneous pay action that takes effect on May 1, 2005.
PART 550--PAY ADMINISTRATION (GENERAL)
Subpart A--Premium Pay
0
40. The authority citation for subpart A of part 550 is revised to read
as follows:
Authority: 5 U.S.C. 5304 note, 5305 note, 5504(d), 5541(2)(iv),
5545a(h)(2)(B) and (i), 5547(b) and (c), 5548, and 6101(c); sections
407 and 2316, Pub. L. 105-277, 112 Stat. 2681-101 and 2681-828 (5
U.S.C. 5545a); E.O. 12748, 3 CFR, 1992 Comp., p. 316.
0
41. In Sec. 550.103, revise the definition of rate of basic pay to
read as follows:
Sec. 550.103 Definitions
* * * * *
Rate of basic pay means the rate of pay fixed by law or
administrative action for the position held by an employee, including
any applicable locality payment under 5 CFR part 531, subpart F;
special rate supplement under 5 CFR part 530, subpart C; or similar
payment or supplement under other legal authority, before any
deductions and exclusive of additional pay of any other kind.
* * * * *
Subpart B--Advances in Pay
0
42. The authority citation for subpart B of part 550 is revised to read
as follows:
Authority: 5 U.S.C. 5524a, 5545a(h)(2)(B); E.O. 12748, 3 CFR,
1992 Comp., p. 316.
0
43. In Sec. 550.202, revise the definition of rate of basic pay to
read as follows:
Sec. 550.202 Definitions.
* * * * *
Rate of basic pay means the rate of pay fixed by law or
administrative action for the position held by an employee, excluding
additional pay of any kind except the following, as applicable:
(1) Any locality payment under 5 CFR part 531, subpart F; special
rate under 5 CFR part 530, subpart C; or similar payment or supplement
under other legal authority;
(2) Annual premium pay under 5 U.S.C. 5545(c) or availability pay
under 5 U.S.C. 5545a;
(3) Straight-time pay for regular overtime hours for firefighters
under 5 U.S.C. 5545b (as provided in Sec. 550.1305(b)); and
(4) Night differential for prevailing rate employees under 5 U.S.C.
5343(f).
Subpart G--Severance Pay
0
44. The authority citation for subpart G of part 550 continues to read
as follows:
Authority: 5 U.S.C. 5595; E.O. 11257, 3 CFR, 1964-1965 Comp., p.
357.
0
45. In Sec. 550.703, amend the definition of representative rate by
removing the reference ``5 CFR 536.102'' and adding in its place ``5
CFR 536.103'', and revise the definition of rate of basic pay to read
as follows:
Sec. 550.703 Definitions.
* * * * *
Rate of basic pay means the rate of pay fixed by law or
administrative action for the position held by an employee, excluding
additional pay of any kind except the following, as applicable:
(1) Any locality payment under 5 CFR part 531, subpart F; special
rate under
[[Page 31314]]
5 CFR part 530, subpart C; or similar payment or supplement under other
legal authority;
(2) Annual premium pay under 5 U.S.C. 5545(c) or availability pay
under 5 U.S.C. 5545a;
(3) Straight-time pay for regular overtime hours for firefighters
under 5 U.S.C. 5545b (as provided in Sec. 550.1305(b)); and
(4) Night differential for prevailing rate employees under 5 U.S.C.
5343(f).
* * * * *
Subpart L--Lump-Sum Payment for Accumulated and Accrued Annual
Leave
0
46. The authority citation for subpart L continues to read as follows:
Authority: 5 U.S.C. 5553, 6306, and 6311.
0
47. In Sec. 550.1202, revise the definition of rate of basic pay to
read as follows:
Sec. 550.1202 Definitions.
* * * * *
Rate of basic pay means the rate of pay fixed by law or
administrative action for the position held by an employee, including
any applicable locality payment under 5 CFR part 531, subpart F;
special rate supplement under 5 CFR part 530, subpart C; or similar
payment or supplement under other legal authority, before any
deductions and exclusive of additional pay of any other kind.
* * * * *
0
48. In Sec. 550.1205, revise paragraph (b)(1) to read as follows:
Sec. 550.1205 Calculating a lump-sum payment.
* * * * *
(b) * * *
(1) An employee's rate of basic pay (as defined in Sec. 550.1202);
* * * * *
Subpart M--Firefighter Pay
0
49. The authority citation for subpart M of part 550 continues to read
as follows:
Authority: 5 U.S.C. 5545b, 5548, and 5553.
Sec. 550.1305 Treatment as basic pay.
0
50. In Sec. 550.1305, amend paragraph (e) by removing the reference
``Sec. 531.606(b) of this chapter'' and adding in its place ``5 CFR
531.610''.
PART 591--ALLOWANCES AND DIFFERENTIALS
Subpart B--Cost-of-Living Allowance and Post Differential--
Nonforeign Areas
0
51. The authority citation for subpart B of part 591 continues to read
as follows:
Authority: 5 U.S.C. 5941; E.O. 10000, 3 CFR, 1943-1948 Comp., p.
792; and E.O. 12510, 3 CFR, 1985 Comp., p. 338.
0
52. In Sec. 591.201, remove the definition of official duty station,
add in alphabetical order the definitions of official worksite and
position of record, and revise the definition of rate of basic pay to
read as follows:
Sec. 591.201 Definitions.
* * * * *
Official worksite means the official location of an employee's
position of record as determined under 5 CFR 531.605.
Position of record means an employee's official position (defined
by grade, occupational series, employing agency, law enforcement
officer status, and any other condition that determines coverage under
a pay schedule (other than official worksite)), as documented on the
employee's most recent Notification of Personnel Action (Standard Form
50 or equivalent) and the current position description, excluding any
position to which the employee is temporarily detailed. For an employee
whose change in official position is followed within 3 workdays by a
reduction in force resulting in the employee's separation before he or
she is required to report for duty in the new position, the position of
record in effect immediately before the position change is deemed to
remain the position of record through the date of separation.
* * * * *
Rate of basic pay means the rate of pay fixed by statute for the
position held by an individual, including any supplement included as
part of basic pay under this subpart by law or regulation (e.g., a
special rate supplement under 5 CFR part 530, subpart C), before any
deductions and exclusive of additional pay of any other kind, such as
overtime pay, night differential, extra pay for work on holidays, or
other allowances and differentials. For firefighters covered by 5
U.S.C. 5545b, straight-time pay for regular overtime hours is basic
pay, as provided in Sec. 550.1305(b) of this chapter.
* * * * *
Subpart B [Amended]
0
53. In addition to the amendments set forth above, in 5 CFR part 591,
subpart B, remove the words ``official duty station'' and ``duty
station'' and add in their place the words ``official worksite''
throughout the subpart, as amended.
PART 630--ABSENCE AND LEAVE
0
54. The authority citation for part 630 is revised to read as follows:
Authority: 5 U.S.C. 6311; Sec. 630.301 also issued under Pub.
L. 103-356, 108 Stat. 3410 and Pub. L. 108-411, 118 Stat 2312; Sec.
630.303 also issued under 5 U.S.C. 6133(a); Sec. Sec. 630.306 and
630.308 also issued under 5 U.S.C. 6304(d)(3), Pub. L. 102-484, 106
Stat. 2722, and Pub. L. 103-337, 108 Stat. 2663; subpart D also
issued under Pub. L. 103-329, 108 Stat. 2423; Sec. 630.501 and
subpart F also issued under E.O. 11228, 30 FR 7739, 3 CFR, 1974
Comp., p. 163; subpart G also issued under 5 U.S.C. 6305; subpart H
also issued under 5 U.S.C. 6326; subpart I also issued under 5
U.S.C. 6332, Pub. L. 100-566, 102 Stat. 2834, and Pub. L. 103-103,
107 Stat. 1022; subpart J also issued under 5 U.S.C. 6362, Pub. L.
100-566, 102 Stat. 2834, and Pub. L. 103-103, 107 Stat. 1022;
subpart K also issued under Pub. L. 105-18, 111 Stat. 158; subpart L
also issued under 5 U.S.C. 6387 and Pub. L. 103-3, 107 Stat. 23; and
subpart M also issued under 5 U.S.C. 6391 and Pub. L. 102-25, 105
Stat. 92.
Subpart L--Family and Medical Leave
0
55. In Sec. 630.1204, revise paragraph (d)(1) to read as follows:
Sec. 630.1204 Intermittent leave or reduced leave schedule.
* * * * *
(d) * * *
(1) An equivalent grade or pay level, including any applicable
locality payment under 5 CFR part 531, subpart F; special rate
supplement under 5 CFR part 530, subpart C; or similar payment or
supplement under other legal authority;
* * * * *
0
56. In Sec. 630.1208, revise paragraph (b)(2) to read as follows:
Sec. 630.1208 Protection of employment and benefits.
* * * * *
(b) * * *
(2) An equivalent grade or pay level, including any applicable
locality payment under 5 CFR part 531, subpart F; special rate
supplement under 5 CFR part 530, subpart C; or similar payment or
supplement under other legal authority;
* * * * *
[[Page 31315]]
PART 831--RETIREMENT
0
57. The authority citation for part 831 continues to read as follows:
Authority: 5 U.S.C. 8347; Sec. 831.102 also issued under 5
U.S.C. 8334; Sec. 831.106 also issued under 5 U.S.C. 552a; Sec.
831.108 also issued under 5 U.S.C. 8336(d)(2); Sec. 831.114 also
issued under 5 U.S.C. 8336(d)(2), and section 1313(b)(5) of Pub. L.
107-296, 116 Stat. 2135; Sec. 831.201(b)(1) also issued under 5
U.S.C. 8347(g); Sec. 831.201(b)(6) also issued under 5 U.S.C.
7701(b)(2); Sec. 831.201(g) also issued under sections 11202(f),
11232(e), and 11246(b) of Pub. L. 105-33, 111 Stat. 251; Sec.
831.201(g) also issued under sections 7(b) and 7(e) of Pub. L. 105-
274, 112 Stat. 2419; Sec. 831.201(i) also issued under sections 3
and 7(c) of Pub. L. 105-274, 112 Stat. 2419; Sec. 831.204 also
issued under section 102(e) of Pub. L. 104-8, 109 Stat. 102, as
amended by section 153 of Pub. L. 104-134, 110 Stat. 1321; Sec.
831.205 also issued under section 2207 of Pub. L. 106-265, 114 Stat.
784; Sec. 831.301 also issued under section 2203 of Pub. L. 106-265,
114 Stat. 780; Sec. 831.303 also issued under 5 U.S.C. 8334(d)(2)
and section 2203 of Pub. L. 106-235, 114 Stat. 780; Sec. 831.502
also issued under 5 U.S.C. 8337; Sec. 831.502 also issued under
section 1(3), E.O. 11228, 3 CFR 1964-1965 Comp. p. 317; Sec. 831.663
also issued under sections 8339(j) and (k)(2); Secs. 831.663 and
831.664 also issued under section 11004(c)(2) of Pub. L. 103-66, 107
Stat. 412; Sec. 831.682 also issued under section 201(d) of Pub. L.
99-251, 100 Stat. 23; Sec. 831.912 also issued under Appendix C to
Pub. L. 106-554, 114 Stat. 2763A-125; subpart V also issued under 5
U.S.C. 8343a and section 6001 of Pub. L. 100-203, 101 Stat. 1330-
275; Sec. 831.2203 also issued under section 7001(a)(4) of Pub. L.
101-508, 104 Stat. 1388-328.
Subpart E--Eligibility for Retirement
Sec. 831.503 [Amended]
0
58. In Sec. 831.503, amend paragraph (b)(3)(iv) by removing the
reference ``Sec. 536.102'' and adding in its place ``Sec. 536.103''.
PART 842--FEDERAL EMPLOYEES RETIREMENT SYSTEM--BASIC ANNUITY
0
59. The authority citation for part 842 continues to read as follows:
Authority: 5 U.S.C. 8461(g); Secs. 842.104 and 842.106 also
issued under 5 U.S.C. 8461(n); Sec. 842.104 also issued under
sections 3 and 7(c) of Pub. L. 105-274, 112 Stat. 2419; Sec. 842.105
also issued under 5 U.S.C. 8402(c)(1) and 7701(b)(2); Sec. 842.106
also issued under section 102(e) of Pub. L. 104-8, 109 Stat. 102, as
amended by section 153 of Pub. L. 104-134, 110 Stat. 1321-102; Sec.
842.107 also issued under sections 11202(f), 11232(e), and 11246(b)
of Pub. L. 105-33, 111 Stat. 251, and section 7(b) of Pub. L. 105-
274, 112 Stat. 2419; Sec. 842.108 also issued under section 7(e) of
Pub. L. 105-274, 112 Stat. 2419; Sec. 842.213 also issued under 5
U.S.C. 8414(b)(1)(B) and section 1313(b)(5) of Pub. L. 107-296, 116
Stat. 2135; Secs. 842.604 and 842.611 also issued under 5 U.S.C.
8417; Sec. 842.607 also issued under 5 U.S.C. 8416 and 8417; Sec.
842.614 also issued under 5 U.S.C. 8419; Sec. 842.615 also issued
under 5 U.S.C. 8418; Sec. 842.703 also issued under section
7001(a)(4) of Pub. L. 101-508, 104 Stat. 1388; Sec. 842.707 also
issued under section 6001 of Pub. L. 100-203, 101 Stat. 1300; Sec.
842.708 also issued under section 4005 of Pub. L. 101-239, 103 Stat.
2106 and section 7001 of Pub. L. 101-508, 104 Stat. 1388; subpart H
also issued under 5 U.S.C. 1104; Sec. 842.810 also issued under
section 636 of Appendix C to Pub. L. 106-554 at 114 Stat. 2763A-164.
Subpart B--Eligibility
Sec. 842.206 [Amended]
0
60. In Sec. 842.206, amend paragraph (c)(3)(iv) by removing the
reference ``Sec. 536.102'' and adding in its place ``Sec. 536.103''.
[FR Doc. 05-10793 Filed 5-26-05; 9:37 am]
BILLING CODE 6325-39-P