[Federal Register Volume 72, Number 79 (Wednesday, April 25, 2007)]
[Proposed Rules]
[Pages 20440-20442]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-7763]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 72, No. 79 / Wednesday, April 25, 2007 /
Proposed Rules
[[Page 20440]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 535
RIN 3206-AK87
Critical Position Pay Authority
AGENCY: Office of Personnel Management.
ACTION: Proposed rule with request for comments.
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SUMMARY: The Office of Personnel Management (OPM) is proposing new
regulations to govern the use of a critical position pay authority that
allows higher rates of pay for positions that require a very high level
of expertise in a scientific, technical, professional, or
administrative field and are critical to the agency's mission. By law,
agency requests for critical position pay authority must be approved by
OPM in consultation with the Office of Management and Budget.
DATES: Submit comments on or before June 25, 2007.
ADDRESSES: Send or deliver written comments to Charles D. Grimes III,
Deputy Associate Director for Performance Management and Pay Systems
Design, Office of Personnel Management, Room 7H31, 1900 E Street, NW.,
Washington, DC 20415-8200; FAX: (202) 606-4264; or e-mail: pay-
performance-policy@opm.gov.
FOR FURTHER INFORMATION CONTACT: Joe Ratcliffe, (202) 606-2838; FAX:
(202) 606-4264; or e-mail: pay-performance-policy@opm.gov.
SUPPLEMENTARY INFORMATION: Section 5377 of title 5, United States Code,
as revised by section 102 of the Federal Workforce Flexibility Act of
2004 (Public Law 108-411, October 30, 2004), authorizes the Office of
Personnel Management (OPM), in consultation with the Office of
Management and Budget (OMB), to grant authority to an agency to fix the
rate of basic pay for one or more positions that are designated as
critical positions.
Section 102 shifts responsibility for the critical position pay
authority from OMB to OPM to encourage increased application of this
underutilized flexibility as a means of attracting talented individuals
to critical positions in the Federal Government who would not otherwise
accept or stay in Government jobs at lower rates of pay. As the agency
charged with assisting the executive branch to meet its growing human
capital demands, OPM currently works directly with other agencies to
ensure that they use the broad range of existing human resources
management tools strategically to recruit, retain, and manage a high-
performing workforce.
Under the critical position pay authority, OPM may, upon the
request of the head of an agency, grant critical position pay authority
for positions that require a very high level of expertise in a
scientific, technical, professional, or administrative field and are
critical to the accomplishment of the agency's mission. Critical
position pay authority may be granted only to the extent necessary to
recruit or retain an individual exceptionally well-qualified for a
critical position.
Approval of critical position pay authority for a position does not
change conditions of employment other than the rate of basic pay. For
example, employees who receive critical position pay still remain under
their normal pay plan, may still receive applicable performance awards;
cash awards; recruitment, retention, and relocation incentives; and
other similar payments; and remain subject to the applicable aggregate
limitation on pay. However, employees receiving critical position pay
may not receive locality pay under 5 U.S.C. 5304 or similar authority.
Agencies with employees under the critical position pay authority must
use the pay rate determinant code ``C'' for covered employees in
submissions to the Central Personnel Data File.
Guidance on submitting requests for critical position pay authority
was published in OMB Bulletin No. 91-09, March 7, 1991. These proposed
regulations would generally continue the policies and procedures
established by OMB, but critical position pay would not be limited to
positions classified above GS-15. A general summary of the proposed
regulations is as follows:
The head of an agency would request critical position pay
authority by sending a written request and supporting documentation to
the Director of OPM. Requests would be prepared in accordance with
Sec. 535.104.
Heads of agencies with approved critical position pay
authority would be authorized to set the rate of basic pay for a
critical position up to the rate for level II of the Executive Schedule
($168,000 in 2007) without further approval.
In exceptional circumstances, the head of an agency could
seek approval for critical position pay authority up to the rate for
level I of the Executive Schedule ($186,600 in 2007), based on
information and data that justify the higher rate of pay.
In rare circumstances, the head of an agency could seek
approval for critical position pay authority at a rate higher than the
rate for level I of the Executive Schedule with approval by the
President based on information and data that justify the higher rate of
pay.
After establishing a critical position pay rate, the head
of an agency would have authority to make subsequent pay adjustments,
up to the authorized maximum rate of pay. However, the employee must
have at least a rating of Fully Successful or equivalent, and
subsequent adjustments must be based on labor market factors,
recruitment and retention needs, and individual accomplishments and
contributions to an agency's mission.
A critical position pay rate would be a rate of basic pay
for most purposes.
Critical position pay authority could be granted to one or
more specific positions at an agency.
The law requires that OPM submit an annual report to
Congress on the use of the critical position pay authority. To produce
this report, agencies using the critical position pay authority would
submit to OPM by January 31 of each year the information described in
Sec. 535.107. The agency would be required to report with respect to
each covered position whether the critical position pay authority is
still needed.
Agencies granted critical position pay authority could
continue to use the authority as long as it is needed. OPM would
monitor agencies' use of critical position pay authorities through
annual reports and could terminate the authority associated with any
given position if, in OPM's judgment in consultation with OMB, the
authority is no longer needed.
[[Page 20441]]
Executive Order 12866, Regulatory Review
The Office of Management and Budget has reviewed this rule in
accordance with Executive Order 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 affect only Federal agencies and employees.
List of Subjects in 5 CFR Part 535
Government employees, Wages.
Office of Personnel Management.
Linda M. Springer,
Director.
Accordingly, OPM is proposing to amend title 5, Code of Federal
Regulations, by adding a new part 535 as follows:
PART 535--CRITICAL POSITION PAY AUTHORITY
Sec.
535.101 Purpose.
535.102 Definitions.
535.103 Authority.
535.104 Requests for and granting critical position pay authority.
535.105 Setting and adjusting rates of basic pay.
535.106 Treatment as a rate of basic pay.
535.107 Annual reporting requirements.
Authority: 5 U.S.C. 5377; E.O. 13415, 71 FR 70641.
Sec. 535.101 Purpose.
The purpose of this part is to provide a regulatory framework for
the critical position pay authority authorized by 5 U.S.C. 5377. The
Office of Personnel Management (OPM), in consultation with the Office
of Management and Budget (OMB), may grant authority to the head of an
agency to fix the rate of basic pay for one or more positions under
this part.
Sec. 535.102 Definitions.
(a) Agency has the meaning given that term in 5 U.S.C. 5102.
(b) Employee means an employee (as defined in 5 U.S.C. 2105) in or
under an agency.
(c) Head of an agency means the agency head or an official who has
been delegated the authority to act for the agency head in the matter
concerned.
(d) Critical position means a position for which OPM has granted
authority to the head of an agency to exercise the pay-setting
authority provided in 5 U.S.C. 5377.
(e) Critical position pay authority means the authority that may be
granted to the head of an agency by OPM under 5 U.S.C. 5377 to set the
rate of basic pay for a given critical position under the provisions of
that section.
(f) Critical position pay rate means the specific rate of pay
established by the head of an agency for an employee in a critical
position based upon the exercise of the critical position pay
authority. A critical position pay rate is a rate of basic pay to the
extent provided in Sec. 535.106.
Sec. 535.103 Authority.
(a) Subject to a grant of authority from OPM in consultation with
OMB and all other requirements in this part, the head of an agency may
fix the rate of basic pay for a critical position at a rate not less
than the rate of basic pay that would otherwise be payable for the
position, but not greater than--
(1) The rate payable for level II of the Executive Schedule (unless
paragraph (a)(2) or (a)(3) applies);
(2) The rate payable for level I of the Executive Schedule in
exceptional circumstances based on information and data that justify a
rate higher than the rate payable for level II of the Executive
Schedule; or
(3) A rate in excess of the rate for level I of the Executive
Schedule that is established in rare circumstances with the written
approval of the President.
(b) The head of an agency may exercise his or her critical position
pay authority only--
(1) When such a position requires expertise of an extremely high
level in a scientific, technical, professional, or administrative field
and is critical to the agency's successful accomplishment of an
important mission; and
(2) To the extent necessary to recruit or retain an individual
exceptionally well-qualified for the critical position.
(c) If critical position pay authority is granted for a position,
the head of an agency may determine whether it is appropriate to
exercise the authority with respect to any proposed appointee or
incumbent of the position.
(d) An agency granted critical position pay authority may continue
to use the authority for an authorized position as long as needed. OPM
will monitor the use of critical position pay authorities annually,
through the agency's required reports under Sec. 535.107, and will
terminate the authority associated with a given position after
notifying the agency if, in OPM's judgment in consultation with OMB,
the authority is no longer needed.
Sec. 535.104 Requests for and granting critical position pay
authority.
(a) An agency may request critical position pay authority only
after determining that the position in question cannot be filled with
an exceptionally well-qualified individual through the use of other
available human resources flexibilities and pay authorities. Agency
requests must include the information in paragraph (d) of this
subsection. OPM, in consultation with OMB, will review agency requests.
OPM will advise the requesting agency as to whether the request is
approved and when the agency's critical position pay authority becomes
effective.
(b) A request for critical position pay authority (or authorities)
must be signed by the head of an agency and submitted to OPM. Requests
covering multiple positions must include a list of the positions in
priority order. The head of an agency may request coverage of positions
of a type not listed in 5 U.S.C. 5377(a)(2), as authorized by 5 U.S.C.
5377(i)(2) and Executive Order 13415.
(c) Requests for critical position pay authority to set pay above
the rate for level II of the Executive Schedule and up to the rate for
level I of the Executive Schedule because of exceptional circumstances
require information and data that justify the higher pay. Requests for
critical position pay authority to set pay above the rate for level I
of the Executive Schedule due to rare circumstances require approval by
the President. The head of an agency must submit such requests to OPM
with the information required in paragraph (d) of this section. If OPM,
in consultation with OMB, concurs with a request to set pay above the
rate for level I of the Executive Schedule, OPM will seek the
President's approval.
(d) At a minimum, all requests for critical position pay authority
must include:
(1) Position title;
(2) Position appointment authority (for Senior Executive Service
positions, appointment authority for any incumbent);
(3) Pay plan and grade/level;
(4) Occupational series of the position;
(5) Geographic location of the position;
(6) Current salary of the position or incumbent;
(7) Name of incumbent (or ``Vacant'');
(8) Length of time the incumbent has been in the position or length
of time the position has been vacant;
(9) A written evaluation of the need to designate the position as
critical. Such an evaluation must include--
(i) The kinds of work required by the position and the context
within which it operates;
(ii) The range of positions and qualification requirements that
[[Page 20442]]
characterize the occupational field, including those that require
extremely high levels of expertise;
(iii) The rates of pay reasonably and generally required in the
public and private sectors for similar positions; and
(iv) The availability of individuals who possess the qualifications
to do the work required by the position;
(10) Documentation, with appropriate supporting data, of the
agency's experience and, as appropriate, the experience of other
organizations, in efforts to recruit or retain exceptionally well-
qualified individuals for the position or for a position sufficiently
similar with respect to the occupational field, required
qualifications, and other pertinent factors, to provide a reliable
comparison;
(11) Assessment of why the agency could not, through diligent and
comprehensive recruitment efforts and without using the critical
position pay authority, fill the position within a reasonable period
with an individual who could perform the duties and responsibilities in
a manner sufficient to fulfill the agency's mission. This assessment
must include a justification as to why the agency could not, as an
effective alternative, use other human resources flexibilities and pay
authorities, such as recruitment, retention, and relocation incentives
under 5 CFR part 575;
(12) An explanation regarding why the position should be designated
a critical position and made eligible for a higher rate of pay under
this part within its organizational context (i.e., relative to other
positions in the organization) and, when applicable, how it compares
with other critical positions in the agency. The agency must include an
explanation of how it will deal with perceived inequities among agency
employees (e.g., situations in which employees in positions designated
as critical would receive higher rates of pay than their peers,
supervisors, or other employees in positions with higher-level duties
and responsibilities);
(13) Documentation of the effect on the successful accomplishment
of important agency missions if the position is not designated as a
critical position;
(14) Any additional information the agency may deem appropriate to
demonstrate that higher pay is needed to recruit or retain an employee
for a critical position;
(15) Unless the position is an Executive Schedule position, a copy
of the position description and qualification standard for the critical
position; and
(16) The desired rate of basic pay for requests to set pay above
the rate for level II of the Executive Schedule and justification to
show that such a rate is necessary to recruit and retain an individual
exceptionally well-qualified for the critical position.
Sec. 535.105 Setting and adjusting rates of basic pay.
(a) The rate of basic pay for a critical position may not be less
than the rate of basic pay, including any locality-based comparability
payments established under 5 U.S.C. 5304 (or similar geographic
adjustment or supplement under other legal authority) that would
otherwise be payable for the position.
(b) If critical position pay authority is granted for a position,
the head of an agency may set pay initially at any amount up to the
rate of pay for level II or level I of the Executive Schedule, as
applicable, without further approval unless a higher maximum rate is
approved by the President under Sec. 535.104(c).
(c) The head of an agency may make subsequent adjustments in the
rate of pay for a critical position each January at the same time
general pay adjustments are authorized for Executive Schedule employees
under section 5318 of title 5, United States Code. Such adjustments may
not exceed the new rate for Executive Schedule level II or other
applicable maximum established for the critical position. However, the
employee must have at least a rating of Fully Successful or equivalent,
and subsequent adjustments must be based on labor market factors,
recruitment and retention needs, and individual accomplishments and
contributions to an agency's mission.
(d) Employees receiving critical position pay are not entitled to
locality-based comparability payments established under 5 U.S.C. 5304
or similar geographic adjustments or supplements under other provision
of law.
(e) If an agency discontinues critical position pay for a given
position (on its own initiative or because OPM, in consultation with
OMB, terminates the authority under Sec. 535.103(d)), the employee's
rate of basic pay will be set at the rate to which the employee would
be entitled had he or she not received critical pay, as determined by
the head of the agency.
Sec. 535.106 Treatment as rate of basic pay.
A critical position pay rate is considered a rate of basic pay for
all purposes except--
(a) Application of any saved pay or pay retention provisions (e.g.,
5 U.S.C. 5363); or
(b) Application of any adverse action provisions (e.g., 5 U.S.C.
7512).
Sec. 535.107 Annual reporting requirements.
(a) OPM must submit an annual report to Congress on the use of the
critical position pay authority. Agencies must submit the following
information to OPM by January 31 of each year on their use of critical
position pay authority for the previous calendar year:
(1) The name, title, pay plan, and grade/level of each employee
receiving a higher rate of basic pay under this subpart;
(2) The annual rate or rates of basic pay paid in the preceding
calendar year to each employee in a critical position;
(3) The beginning and ending dates of such rate(s) of basic pay, as
applicable;
(4) The rate or rates of basic pay that would have been paid but
for the grant of critical position pay. This includes what the rate or
rates of basic pay were, or would have been, without critical position
pay at the time critical position pay is initially exercised and any
subsequent adjustments to basic pay that would have been made if
critical position pay authority had not been exercised (estimate rates
where a range would apply, such as for Senior Executive Service
positions); and
(5) Whether the authority is still needed for the critical
position(s).
(b) [Reserved]
[FR Doc. E7-7763 Filed 4-24-07; 8:45 am]
BILLING CODE 6325-39-P