[Federal Register Volume 72, Number 181 (Wednesday, September 19, 2007)]
[Rules and Regulations]
[Pages 53411-53413]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-18377]



========================================================================
Rules and Regulations
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents 
having general applicability and legal effect, most of which are keyed 
to and codified in the Code of Federal Regulations, which is published 
under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents. 
Prices of new books are listed in the first FEDERAL REGISTER issue of each 
week.

========================================================================


Federal Register / Vol. 72, No. 181 / Wednesday, September 19, 2007 / 
Rules and Regulations

[[Page 53411]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 553

RIN 3206-AI32


Reemployment of Civilian Retirees To Meet Exceptional Employment 
Needs

AGENCY: Office of Personnel Management.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Office of Personnel Management (OPM) is issuing final 
regulations to amend the criteria under which OPM may grant dual 
compensation (salary offset) waivers on a case-by-case basis, or 
delegate waiver authority to agencies. The intended effect of these 
regulations is to more closely mirror the statutory authority and 
ensure that the Director and her designee(s) possess the full degree of 
discretion afforded by the statute in making particular decisions.

DATES: This rule is effective October 19, 2007.

FOR FURTHER INFORMATION CONTACT: Janice Warren, by telephone (202) 606-
2367; by fax: (202) 606-2329; by TTY: (202) 418-3134; or e-mail: 
janice.warren@opm.gov.

SUPPLEMENTARY INFORMATION: On July 21, 2006, OPM issued proposed 
regulations at 71 FR 41376 to allow OPM to grant or delegate to 
agencies the authority to grant dual compensation waivers in situations 
resulting from emergencies posing an immediate and direct threat to 
life or property or situations resulting from unusual circumstances 
that do not involve an emergency. The proposed rule also made changes 
to the section headings and removed any information concerning military 
employees (i.e., retired members of the uniformed services).

Comments

    OPM received written comments from three Federal agencies, and four 
individuals that are pertinent to the proposed changes. A discussion of 
the comments is provided below.
    Two agencies suggested OPM add criteria to Sec. Sec.  553.201(f) 
and 202 to address situations where agencies need to reemploy 
individuals for succession planning or knowledge transfer purposes. One 
individual suggested OPM amend Sec. Sec.  553.201(f) and 202(b) to 
establish that an agency's need for sustaining critical competencies in 
accordance with agency human capital plans constitutes an unusual 
circumstance. OPM is not adopting the suggestion to amend Sec. Sec.  
553.201(f) and 202(b). OPM seeks to maintain maximum flexibility and 
discretion in its use of this authority. Agency needs to address gaps 
in critical competencies or skills, and/or addressing knowledge 
transfer needs, in and of themselves, will not normally be found to 
constitute ``other unusual circumstances'' for purposes of these 
provisions.
    We do recognize that examples of what an agency may request under 
these sections may be helpful. Other unusual circumstances may include, 
but are not limited to, an agency's need to conform to a Congressional 
or other mandate to meet a new or expanded mission requirement by a 
particular date or the need to appoint on a temporary basis an 
annuitant who possesses a security clearance, authorization, or other 
similar credential required to perform new or expanded mission-critical 
work which no other employee could obtain within a reasonable time. We 
intend to issue supplemental guidance to help an agency determine 
whether it can demonstrate that these criteria have been met.
    One of these agencies suggested OPM limit waivers granted on a 
case-by-case basis or through a delegation of authority to six months 
when the approval was used to address knowledge transfer. We did not 
adopt the suggestion to limit waivers to address knowledge transfer to 
six months because OPM prefers to maintain maximum flexibility and 
discretion in response to agency knowledge management needs. OPM 
encourages agencies to follow succession or workforce planning 
practices, including knowledge management, as part of sound human 
capital management.
    One agency asked OPM to clarify the use of the term ``temporary 
basis'' as used in Sec.  553.201(c) and (f). The agency commented this 
term implies that individuals who receive waivers under part 553 may 
only receive a temporary appointment in conjunction with the waiver. 
The term ``temporary basis'' derives from 5 U.S.C. 8344(i)(1)(B) and 
8468(f)(1)(B) and reflects the time-limited or non-permanent nature of 
emergencies or other unusual circumstances for which waivers under this 
part may be granted. Though agencies typically give temporary 
appointments to individuals for whom OPM has granted a waiver, agencies 
may use any appropriate appointing authority, per Sec.  553.201(b)(1), 
when reemploying individuals.
    Two individuals were opposed to the changes OPM proposed to part 
553. One individual commented the proposed rule would encourage 
agencies to reemploy annuitants rather than recruit and train new 
employees to close skills gaps. The other individual commented the 
proposed rule to broaden authority to re-employ annuitants would 
increase skills gap deficiencies because agencies will rely 
disproportionately on this authority in lieu of hiring, training, and 
developing newer employees. OPM disagrees, noting these provisions are 
limited to situations involving exceptional recruiting difficulties and 
emergencies or other unusual circumstances. In addition, salary offset 
waivers granted under these provisions are not intended to be a 
substitute for succession planning. Further, use of this authority may 
be appropriate for knowledge management purposes, which supports the 
training and development of newer employees.
    One individual suggested OPM amend Sec. Sec.  553.201(f) and 202(b) 
by including information pertaining to retention incentives, as an 
alternative for people who might otherwise retire and seek reemployment 
under this part. OPM did not adopt this suggestion because 
consideration or use of retention incentives is not a prerequisite to 
seeking salary offset waivers or delegations of authority under this 
part. For this reason, we do not believe including information on such 
incentives in Sec. Sec.  553.201 and 202 is appropriate. Agencies that 
choose to

[[Page 53412]]

offer retention incentives prior to consideration of salary-offset 
waivers can find the applicable provisions in 5 CFR part 575, subpart 
C.
    One individual suggested OPM impose a 5-year waiting period from 
when an individual retires before an agency may reemploy the individual 
with a salary offset waiver. OPM did not adopt this suggestion because 
salary offset waivers are intended to address emergency situations, 
exceptional recruitment difficulties, or other unusual circumstances. A 
waiting period would inappropriately delay an agency's ability to 
respond to the particular circumstance for which a waiver or delegation 
of authority is being sought.
    One individual suggested that salary offset waivers will allow 
annuitants to be reemployed as contractors, on the basis of their 
friendships with officials in the employing agency, under the pretense 
that no qualified employee is available to perform the work. The 
provisions in part 553 do not apply to contractors, who are not 
considered reemployed annuitants for these purposes.
    OPM also received comments from four Federal agencies, two private 
organizations, and one individual, which went beyond the scope of the 
proposed amendments to the regulation. Because these comments were not 
pertinent to the proposed amendments, OPM is not responding to them. 
The comments are listed below.
    Two agencies commented on the issue of delegating salary offset 
waiver authority to Federal agencies. One of these agencies suggested 
OPM delegate waiver authority to agency heads for all waivers expected 
to last less than one year.
    The other agency suggested OPM provide for re-delegation of OPM-
approved waiver authority, from the agency head to components within 
the agency.
    This same agency suggested we add language to Sec.  553.203 which 
states that reemployed annuitants under this part are subject to Social 
Security tax.
    This same agency also suggested OPM establish guidelines for 
agencies to follow when submitting salary offset waiver requests.
    One agency suggested the final rules allow agencies to waive the 
salary offset to fill positions on either a full-time, part-time or as-
needed work schedule limited to 180 days or less.
    This same agency suggested the final regulations allow agencies 
with specific non-annual, but recurring or cyclical work to rehire 
annuitants with a salary off-set waiver to assist in completing these 
on-going projects.
    One agency asked OPM to describe whether use of this authority will 
result in any costs to the employing agency (i.e., the agency to which 
OPM has granted a waiver on a case-by-case basis or delegated 
authority).
    One private organization asked whether the proposed rule would have 
any impact on firefighters hired under the administratively determined 
pay plan authority initially granted to the Forest Service in 1951.
    One individual suggested all Federal retirees receive full salary 
compensation without an offset upon reemployment in the same manner as 
military retirees.
    The same individual suggested reemployed annuitants should be 
allowed to contribute to the Thrift Savings Plan (TSP), without 
agencies being required to provide matching contributions.
    An individual suggested OPM provide delegation of waiver authority 
to members of the Senior Executive Service (SES) or general military 
flag officers, in addition to heads of agencies.
    One individual asked whether OPM would provide a website listing 
positions, which may be filled by reemployed annuitants with salary, 
offset waivers. Before filling positions with reemployed annuitants 
under part 553, agencies must follow the appropriate public notice 
requirements applicable to the position being filled.

Regulatory Flexibility Act

    I certify that this regulation will not have a significant economic 
impact on a substantial number of small entities because it affects 
only certain potential applicants and Federal employees.

Executive Order 12866, Regulatory Review

    This rule has been reviewed by the Office of Management and Budget 
in accordance with Executive Order 12866.

List of Subjects in 5 CFR Part 553

    Administrative practice and procedure, Government employees, 
Military personnel, Retirement, and Wages.

Office of Personnel Management.
Linda M. Springer,
Director.


0
Accordingly, OPM is amending 5 CFR part 553 as follows:

PART 553--REEMPLOYMENT OF CIVILIAN RETIREES TO MEET EXCEPTIONAL 
EMPLOYMENT NEEDS

0
1. The authority citation for part 553 continues to read as follows:

    Authority: 5 U.S.C. 8344, 8468, Sec. 651, Pub. L. 106-65 (113 
Stat. 664).


0
2. The heading for part 553 is revised as set forth above.

Subpart B--Special Provisions for Reemployment Without Penalty To 
Meet Exceptional Recruiting or Retention Needs

0
3. Section 553.201 is amended by revising the section heading, 
paragraphs (a) and (b)(2), and the introductory text to paragraph (c); 
removing paragraph (b)(4); redesignating paragraph (f) as paragraph 
(g); and adding a new paragraph (f) to read as follows:


Sec.  553.201  Requesting OPM approval for reemployment without 
reduction or termination of annuity in individual cases.

    (a) Request by agency head. The head of an agency may request OPM 
to approve individual exceptions on a case-by-case basis to meet 
temporary hiring needs based on an emergency or other unusual 
circumstances or when the agency has encountered exceptional difficulty 
in recruiting or retaining a qualified candidate for a particular 
position. Authority to submit such a request may not be redelegated to 
an official below the agency's headquarters level.
    (b) * * *
    (2) The request must be submitted in accordance with the criteria 
set out in paragraphs (c), (d), (e), or (f) of this section.
* * * * *
    (c) Requests based on an emergency hiring need. An agency may 
request reemployment without penalty for an individual whose services 
are needed on a temporary basis to respond to an emergency involving a 
direct threat to life or property. Requests submitted on that basis 
must meet the following criteria:
* * * * *
    (f) Requests based on other unusual circumstances. An agency may 
request reemployment without penalty for an individual whose services 
are needed on a temporary basis due to other unusual circumstances. 
Agencies must provide justification describing the unusual 
circumstances.
* * * * *

0
4. Section 553.202 is amended by revising the section heading and 
paragraph (b)(1) to read as follows:

[[Page 53413]]

Sec.  553.202  Request for delegation of authority to approve 
reemployment without reduction or termination of annuity in emergencies 
or other unusual circumstances.

* * * * *
    (b) * * *
    (1) Description of the situations for which authority is requested. 
The situation must result from emergencies posing immediate and direct 
threat to life or property or from other unusual circumstances.
* * * * *

0
5. Section 553.203 is revised to read as follows:


Sec.  553.203  Status of individuals serving without reduction.

    Annuitants reemployed with full salary and annuity under an 
exception granted in accordance with this part are not considered 
employees for purposes of subchapter III of chapter 83 or chapter 84 of 
title 5, United States Code. They may not elect to have retirement 
contributions withheld from their pay; they may not use any employment 
for which an exception is granted as a basis for a supplemental or 
recomputed annuity; and they may not participate in the Thrift Savings 
Plan.

 [FR Doc. E7-18377 Filed 9-18-07; 8:45 am]
BILLING CODE 6325-39-P