[Federal Register Volume 76, Number 5 (Friday, January 7, 2011)]
[Proposed Rules]
[Pages 1096-1100]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-111]


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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. 76, No. 5 / Friday, January 7, 2011 / 
Proposed Rules

[[Page 1096]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Parts 531 and 575

RIN 3206-AM13


Pay Under the General Schedule and Recruitment, Relocation, and 
Retention Incentives

AGENCY: U.S. Office of Personnel Management.

ACTION: Proposed rule with request for comments.

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

SUMMARY: The U.S. Office of Personnel Management (OPM) is issuing 
proposed regulations to improve oversight of group recruitment 
incentive determinations and all retention incentives; add succession 
planning to the list of factors that an agency may consider before 
approving a retention incentive; provide that OPM may require data on 
recruitment, relocation, and retention incentives from agencies on an 
annual basis; and make additional minor clarifications and corrections.

DATES: Comments must be received on or before March 8, 2011.

ADDRESSES: You may submit comments, identified by RIN number ``3206-
AM13,'' using either of the following methods:
    Federal eRulemaking Portal: http://www.regulations.gov. Follow the 
instructions for submitting comments.
    Mail: Jerome D. Mikowicz, Deputy Associate Director, Pay and Leave, 
Employee Services, U.S. Office of Personnel Management, Room 7H31, 1900 
E Street, NW., Washington, DC 20415-8200.

FOR FURTHER INFORMATION CONTACT: Carey Jones by telephone at (202) 606-
2858; by fax at (202) 606-0824; or by e-mail at pay-leave-policy@opm.gov.

SUPPLEMENTARY INFORMATION: The U.S. Office of Personnel Management 
(OPM) is issuing proposed regulations to improve oversight of group 
recruitment incentive determinations and all retention incentives; add 
succession planning to the list of factors that an agency may consider 
before approving a retention incentive; provide that OPM may require 
data on recruitment, relocation, and retention incentives from agencies 
on an annual basis; and make additional minor clarifications and 
corrections.

Administration and Oversight of Recruitment, Relocation, and Retention 
Incentives

    In May 2009, OPM announced a project to review and improve the 
administration and oversight of recruitment, relocation, and retention 
incentives (3Rs). In a memorandum to heads of executive departments and 
agencies, OPM asked agencies to review their 3Rs programs to ensure 
that ongoing and new authorizations for payments to employees are used 
only when necessary to support the agency's mission and recommended 
agencies review all retention incentives at least annually. In July 
2009, OPM asked each agency to review and, if needed, update its 3Rs 
plans, as well as approval and internal monitoring procedures to ensure 
they meet the requirements in 5 CFR part 575, subparts A, B, and C. In 
August 2009, OPM convened a work group of compensation experts from the 
12 Federal agencies that used the greatest number of 3Rs in 2007 to 
develop recommendations for improving the administration and oversight 
of the 3Rs authorities. The work group recommended that OPM issue 
proposed regulations to require agencies to review group recruitment 
incentives and all retention incentives at least annually to determine 
whether they should be modified or discontinued based on new or changed 
conditions. This will help agencies ensure that recurring recruitment 
or retention incentive authorizations for the same group of employees 
(or individual employees, in the case of retention incentives) are 
appropriate. These proposed regulations support the recommendations 
made by OPM in the May 2009 memo and by the work group.

Recruitment Incentives

    Under 5 CFR 575.105, an agency may target groups of similar 
positions that have been difficult to fill in the past or that are 
likely to be difficult to fill in the future and may make the 
determination to offer a recruitment incentive to newly-appointed 
employees on a group basis. OPM proposes revising 5 CFR 575.105(b) to 
require that each agency review each decision to target a group of 
similar positions at least annually to determine whether the positions 
are still likely to be difficult to fill. An authorized agency official 
must certify this determination in writing. An agency that determines a 
group of similar positions is no longer likely to be difficult to fill 
may no longer offer a group recruitment incentive to newly-appointed 
employees of that group.

Relocation Incentives

    As provided in 5 U.S.C. 5753(b)(2)(B)(ii)(II), an agency may pay a 
relocation incentive only if the employee must relocate to accept a 
position in a different geographic area. In order to make this 
determination, the regulations in 5 CFR 575.205(b) require that an 
employee establish a residence in the new geographic area before the 
agency may pay a relocation incentive to the employee. OPM proposes 
revising 5 CFR 575.205(b) by adding a requirement that an employee 
maintain residency in the new geographic area for the duration of the 
service agreement in order to receive relocation incentive payments. 
OPM also proposes revising 5 CFR 575.211(b) to require that an 
authorized agency official terminate a relocation incentive service 
agreement if an employee fails to maintain residency in the new 
geographic area for the duration of the service agreement. These 
changes will make the regulations more consistent with the requirement 
in the law that an employee must relocate to receive a relocation 
incentive.

Retention Incentives

Annual Review

    OPM's regulations in 5 CFR 575.311 are clear that each agency is 
responsible for terminating retention incentives when conditions change 
such that the original determination to pay the incentive no longer 
applies or when payment is no longer warranted. Agencies are currently 
required under Sec.  575.311(f) to review each determination to pay a 
retention incentive without a service agreement at least annually to 
determine whether the payment is still warranted. OPM proposes revising 
Sec.  575.311(a) to require that agencies also review each 
determination to pay a retention incentive that is subject to a service

[[Page 1097]]

agreement at least annually to determine whether the original 
determination to pay the retention incentive still applies or whether 
payment is still warranted and certify this determination in writing. 
This will ensure all retention incentive authorizations are reviewed at 
least annually, whether associated with a service agreement or not.

Succession Planning

    An agency must consider the factors in 5 CFR 575.306(b), as 
applicable to the case at hand, in determining whether the unusually 
high or unique qualifications of an employee or a special need of the 
agency for an employee's services makes it essential to retain the 
employee and that the employee would be likely to leave the Federal 
service in the absence of a retention incentive. OPM proposes adding 
another factor for agencies to consider as follows: ``The quality and 
availability of the potential sources of employees that are identified 
in the agency's succession plan, who possess the competencies required 
for the position, and who, with minimal training, cost, and disruption 
of service to the public, could perform the full range of duties and 
responsibilities of the employee's position at the level performed by 
the employee.''
    Succession planning is a critical success factor in strategic 
workforce analysis, planning, and decision making. OPM currently 
requires each agency to establish a succession plan to fill supervisory 
and managerial positions. (See 5 CFR 412.201 and 250.202(c)(2).) In 
addition, OPM's Human Capital Assessment and Accountability Framework 
advises that a succession plan should include specific goals and 
leadership positions needed, target positions and key leadership 
competencies, potential sources of talent that best support the 
agency's mission and culture, and recruitment or development strategies 
needed to ensure availability of well-qualified staff to fill 
leadership positions at all levels. Agencies currently have the 
flexibility to consider their succession planning efforts in the 
decision process for awarding retention incentives as ``other 
supporting factors'' under 5 CFR 575.306(b)(8). However, specifically 
listing the factor in this section of the regulations will strengthen 
the relationship between succession planning and retention incentives.
    OPM is also taking this opportunity to correct some erroneous 
references in Sec.  575.305(c).

Employee Eligibility

    Currently, Senior Executive Service (SES) members paid under 5 
U.S.C. 5383 are eligible for recruitment, relocation, and retention 
incentives under 5 CFR 575.103(a)(3), 575.203(a)(3), and 575.303(a)(3), 
unless the SES member is excluded under one of the conditions in 5 CFR 
575.104, 575.204, and 575.304. Some of the exclusions are established 
under 5 U.S.C. 5753(a)(2) and 5754(a)(2), while the others are 
established under regulatory authority consistent with the intent of 
the law. All of the exclusions in the law and regulations are political 
appointees or individuals whose political appointments are pending. For 
example, an agency may not pay a recruitment, relocation, or retention 
incentive to an employee in a position to which the individual is 
appointed by the President with or without the advice and consent of 
the Senate.
    An agency made OPM aware of an extremely rare situation in which an 
individual was appointed by the President, without the advice and 
consent of the Senate, to a position in the career SES. The agency had 
properly determined that the position is a career reserved position as 
that term is defined in 5 U.S.C. 3132. Such an employee should be 
eligible for a recruitment, relocation, or retention incentive because 
the employee serves as a career appointee while in the Presidential 
appointment. A career SES member who accepts a Presidential appointment 
and no longer serves as a career appointee under the Presidential 
appointment would not be eligible for recruitment, relocation, or 
retention incentives. Note also that coverage under the 3Rs authorities 
is not among the elections available to an individual under 5 CFR part 
317, subpart H. Therefore, OPM proposes revising 5 CFR 575.104(d)(1), 
575.204(d)(1), and 575.304(d)(1) to clarify that an agency may pay a 
recruitment, relocation, or retention incentive to an employee in an 
SES position in which the individual serves as a career appointee, even 
if the member is appointed by the President without the advice and 
consent of the Senate.
    OPM also proposes revising 5 CFR 575.104(d), 575.204(d), and 
575.304(d) to clarify that all individuals whose SES limited 
appointments are cleared through the White House Office of Presidential 
Personnel are ineligible for 3Rs payments. Limited term and limited 
emergency SES appointments may be political appointments if made to 
positions that are political in character (e.g., established for an 
individual pending Presidential appointment, for political transition 
purposes, or for other political purposes of the agency or 
Administration) and should be excluded from coverage as other political 
positions are excluded from coverage.
    Another agency recently asked OPM whether a limited term or limited 
emergency SES member could receive a recruitment incentive if selected 
for a career SES position. Recruitment incentives may be paid to an 
employee who is ``newly appointed'' to the Federal Government, as that 
term is defined in 5 CFR 575.102. The definition includes the first 
appointment (regardless of tenure) as an employee of the Federal 
Government, an appointment following a break in service of at least 90 
days from a previous appointment as an employee of the Federal 
Government, or, in certain cases, an appointment following a break in 
service of less than 90 days from a previous appointment as an employee 
of the Federal Government. OPM proposes adding that a break in service 
of at least 90 days would not be required if the previous appointment 
was a position to which the individual was appointed as an SES limited 
term appointee or limited emergency appointee (except as described in 
the next paragraph). This would be consistent with how a time-limited 
appointment in the competitive or excepted service is not subject to 
the 90-day break in service requirement.
    OPM also proposes clarifying that an employee would be required to 
have a break in service of at least 90 days from an appointment that is 
ineligible for recruitment incentives as provided in 5 CFR 575.104 even 
if the appointment is otherwise covered by an exception in the 
definition of ``newly appointed'' in 5 CFR 575.102. For example, as 
proposed, an SES limited term appointee or limited emergency appointee 
when the appointment must be cleared through the White House Office of 
Presidential Personnel would be required to have at least a 90-day 
break in service before becoming eligible for a recruitment incentive, 
but an SES limited term appointee or limited emergency appointee when 
the appointment does not need to be cleared through the White House 
Office of Presidential Personnel would not be required to have at least 
a 90-day break in service before becoming eligible for a recruitment 
incentive. OPM also proposes making similar revisions to the superior 
qualifications and special needs pay-setting authority regulations in 5 
CFR 531.212(a)(3).

[[Page 1098]]

Reports

    Section 101(c) of the Federal Workforce Flexibility Act of 2004 
(Pub. L. 108-411, October 30, 2004) required OPM to submit an annual 
report to the Committee on Governmental Affairs of the Senate and the 
Committee on Government Reform in the House of Representatives on the 
operation of the 3Rs authorities for each of the first 5 years in which 
the amended authorities were in effect (i.e., 2005 to 2009). Sections 
575.113(b), 575.213(b), 575.313(b), and 575.315(i) require agencies to 
submit specific information and data to OPM for this annual report. 
While OPM will no longer be required to submit a report to Congress on 
agencies' use of the 3Rs authorities in calendar year 2010 and 
subsequent calendar years, OPM has found the annual report to be very 
informative concerning Governmentwide use of the 3Rs. We also learned 
in the interagency work group that met in August 2009 (see 
Administration and Oversight of Recruitment, Relocation, and Retention 
Incentives section of this SUPPLEMENTARY INFORMATION) that the 3Rs 
report may help agencies understand the nature and trends of their own 
3Rs use. OPM is also able to compare the data agencies report to OPM 
for the report to Congress to the data agencies report to OPM's central 
data systems under 5 CFR 9.2 and follow up with agencies concerning the 
accuracy of the data. Therefore, OPM proposes to amend sections 
575.113(b), 575.213(b), 575.313(b), and 575.314(i) (as redesignated in 
these proposed regulations) to remove references to OPM's report to 
Congress and provide that OPM may require that each agency submit a 
report to OPM on its use of incentives in the previous calendar year. 
The proposed regulations would also allow OPM to exempt an agency (or 
part of an agency) from all or any part of any reporting requirement if 
OPM has determined that the incentive data submitted to OPM's central 
data systems under 5 CFR 9.2 is accurate and sufficient for our 
Governmentwide role of monitoring and administering the 3Rs.

Recruitment, Relocation, and Retention Payments Authorized Before May 
1, 2005

    Under section 101(d)(2) of Public Law 108-411 and 5 CFR 575.114 and 
575.214, a recruitment or relocation bonus service agreement that was 
authorized under 5 U.S.C. 5753 and 5 CFR part 575, subparts A and B, 
before May 1, 2005, remained in effect until its expiration, subject to 
the law and regulations applicable to recruitment and relocation 
bonuses before May 1, 2005. We propose removing Sec. Sec.  575.114 and 
575.214, as such recruitment and relocation bonus service agreements 
have likely expired.
    Under section 101(d)(3) of Public Law 108-411 and 5 CFR 575.314, 
retention allowances that were authorized under 5 U.S.C. 5754 and 5 CFR 
part 575, subpart C, before May 1, 2005, had to continue to be paid 
until the retention allowance was reauthorized or terminated, but not 
later than April 30, 2006, and were subject to the law and regulations 
applicable to retention allowances before May 1, 2005. We propose 
removing Sec.  575.314 and redesignating Sec.  575.315 as Sec.  575.314 
because the April 30, 2006 deadline has been met.

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 Parts 531 and 575

    Government employees, Law enforcement officers, Wages.

U.S. Office of Personnel Management.
John Berry,
Director.
    Accordingly, OPM is proposing to amend 5 CFR parts 531 and 575 as 
follows:

PART 531--PAY UNDER THE GENERAL SCHEDULE

    1. The authority citation for part 531 continues to read as 
follows:

    Authority:  5 U.S.C. 5115, 5307, and 5338; sec. 4 of Public Law 
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 and 7701(b)(2); Subpart E also issued under 5 U.S.C. 
5336; Subpart F also issued under 5 U.S.C. 5304 and 5305; 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.

Subpart B--Determining Rate of Basic Pay

    2. In Sec.  531.212--
    a. Amend paragraph (a)(1)(ii) by removing word ``and'' and adding 
``or'' in its place;
    b. Revise paragraph (a)(3); and
    c. Add paragraph (a)(5).
    The revision and addition read as follows:


Sec.  531.212  Superior qualifications and special needs pay-setting 
authority.

    (a) * * *
    (3) Except as provided in paragraph (a)(5) of this section, 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) A time-limited appointment in the competitive or excepted 
service;
    (ii) A non-permanent appointment in the competitive or excepted 
service;
    (iii) Employment with the government of the District of Columbia 
(DC) when the candidate was first appointed by the DC government on or 
after October 1, 1987;
    (iv) An appointment as an expert or consultant under 5 U.S.C. 3109 
and 5 CFR part 304;
    (v) Employment under a provisional appointment designated under 5 
CFR 316.403;
    (vi) Employment under the Student Career Experience Program under 5 
CFR 213.3202(b); or
    (vii) Employment as a Senior Executive Service limited term 
appointee or limited emergency appointee (as defined in 5 U.S.C. 
3132(a)(5) and (a)(6), respectively).
* * * * *
    (5) An agency may not apply an exception in paragraph (a)(3) of 
this section if the candidate's civilian employment with the Federal 
Government during the 90-day period immediately preceding the 
appointment was in one or more of the following types of positions--
    (i) A position to which an individual is appointed by the 
President, by and with the advice and consent of the Senate;
    (ii) A position in the Senior Executive Service as a noncareer 
appointee (as defined in 5 U.S.C. 3132(a)(7));
    (iii) A position excepted from the competitive service by reason of 
its confidential, policy-determining, policy-making, or policy-
advocating character;
    (iv) A position to which an individual is appointed by the 
President without the advice and consent of the Senate;
    (v) A position designated as the head of an agency, including an 
agency headed by a collegial body composed of two or more individual 
members;

[[Page 1099]]

    (vi) A position in which the employee is expected to receive an 
appointment as the head of an agency; or
    (vii) A position to which an individual is appointed as a Senior 
Executive Service limited term appointee or limited emergency appointee 
(as defined in 5 U.S.C. 3132(a)(5) and (a)(6), respectively) when the 
appointment must be cleared through the White House Office of 
Presidential Personnel.
* * * * *

PART 575--RECRUITMENT, RELOCATION, AND RETENTION INCENTIVES; 
SUPERVISORY DIFFERENTIALS; AND EXTENDED ASSIGNMENT INCENTIVES

    3. Revise the authority citation for part 575 to read as follows:

    Authority:  5 U.S.C. 1104(a)(2) and 5307; subparts A and B also 
issued under 5 U.S.C. 5753; subpart C also issued under 5 U.S.C. 
5754; subpart D also issued under 5 U.S.C. 5755; subpart E also 
issued under 5 U.S.C. 5757 and sec. 207 of Public Law 107-273, 116 
Stat. 1780.

Subpart A--Recruitment Incentives

    4. In Sec.  575.102, revise paragraph (3) in the definition of 
newly appointed to read as follows:


Sec.  575.102  Definitions.

* * * * *
    Newly appointed refers to--* * *
    (3) An appointment of an individual in the Federal Government when 
his or her service in the Federal Government during the 90-day period 
immediately preceding the appointment was not in a position excluded by 
section 575.104 and was limited to one or more of the following:
    (i) A time-limited appointment in the competitive or excepted 
service;
    (ii) A non-permanent appointment in the competitive or excepted 
service;
    (iii) Employment with the government of the District of Columbia 
(DC) when the candidate was first appointed by the DC government on or 
after October 1, 1987;
    (iv) An appointment as an expert or consultant under 5 U.S.C. 3109 
and 5 CFR part 304;
    (v) Employment under a provisional appointment designated under 5 
CFR 316.403;
    (vi) Employment under the Student Career Experience Program under 5 
CFR 213.3202(b); or
    (vii) Employment as a Senior Executive Service limited term 
appointee or limited emergency appointee (as defined in 5 U.S.C. 
3132(a)(5) and (a)(6), respectively).
* * * * *
    5. In Sec.  575.104--
    a. Revise paragraph (d)(1);
    b. Remove ``or'' at the end of paragraph (d)(2);
    c. Remove the period at the end of paragraph (d)(3) and add ``; 
or'' in its place; and
    d. Add paragraph (d)(4).
    The revision and addition read as follows:


Sec.  575.104  Ineligible categories of employees.

* * * * *
    (d) * * *
    (1) To which an individual is appointed by the President without 
the advice and consent of the Senate, except a Senior Executive Service 
position in which the individual serves as a career appointee (as 
defined in 5 U.S.C. 3132(a)(4));
* * * * *
    (4) To which an individual is appointed as a Senior Executive 
Service limited term appointee or limited emergency appointee (as 
defined in 5 U.S.C. 3132(a)(5) and (a)(6), respectively) when the 
appointment must be cleared through the White House Office of 
Presidential Personnel.
    6. In Sec.  575.105, revise paragraph (b) to read as follows:


Sec.  575.105  Applicability to employees.

* * * * *
    (b)(1) An agency may target groups of similar positions (excluding 
positions covered by Sec.  575.103(a)(2), (a)(3), or (a)(5) or those in 
similar categories approved by OPM under Sec.  575.103(a)(7)) that have 
been difficult to fill in the past or that may be difficult to fill in 
the future and make the required determination to offer a recruitment 
incentive to newly-appointed employees on a group basis.
    (2) An agency must review each decision to target a group of 
similar positions for the purpose of granting a recruitment incentive 
at least annually to determine whether the positions are still likely 
to be difficult to fill. An authorized agency official must certify 
this determination in writing. If an agency determines the positions 
are no longer likely to be difficult to fill, the agency may not offer 
a recruitment incentive to newly-appointed employees in that group on a 
group basis.
* * * * *
    7. In Sec.  575.113, revise paragraph (b) introductory text to read 
as follows:


Sec.  575.113  Records and reports.

* * * * *
    (b) OPM may require that each agency submit an annual written 
report to OPM on the use of the recruitment incentive authority within 
the agency during the previous calendar year. OPM may exempt an agency 
(or part of an agency) from all or any part of any reporting 
requirement established under this section if OPM has determined that 
the recruitment incentive data submitted to OPM's central data systems 
under 5 CFR 9.2 is accurate and sufficient. Each agency report that is 
required must include--
* * * * *


Sec.  575.114  [Removed]

    8. Remove Sec.  575.114.

Subpart B--Relocation Incentives

    9. In Sec.  575.204--
    a. Revise paragraph (d)(1);
    b. Remove ``or'' at the end of paragraph (d)(2);
    c. Remove the period at the end of paragraph (d)(3) and add ``; 
or'' in its place; and
    d. Add paragraph (d)(4).
    The revision and addition read as follows:


Sec.  575.204  Ineligible categories of employees.

* * * * *
    (d) * * *
    (1) To which an individual is appointed by the President without 
the advice and consent of the Senate, except a Senior Executive Service 
position in which the individual serves as a career appointee (as 
defined in 5 U.S.C. 3132(a)(4));
* * * * *
    (4) To which an individual is appointed as a Senior Executive 
Service limited term appointee or limited emergency appointee (as 
defined in 5 U.S.C. 3132(a)(5) and (a)(6), respectively) when the 
appointment must be cleared through the White House Office of 
Presidential Personnel.
    10. In Sec.  575.205, add a sentence at the end of paragraph (b) to 
read as follows:


Sec.  575.205  Applicability to employees.

* * * * *
    (b) * * * A relocation incentive may be paid only if the employee 
maintains residency in the new geographic area for the duration of the 
service agreement.
* * * * *
    11. In Sec.  575.211, revise paragraph (b) to read as follows--


Sec.  575.211  Termination of a service agreement.

* * * * *
    (b) An authorized agency official must terminate a relocation 
incentive service agreement if an employee is demoted or separated for 
cause (i.e., for

[[Page 1100]]

unacceptable performance or conduct), if the employee receives a rating 
of record (or an official performance appraisal or evaluation under a 
system not covered by 5 U.S.C. chapter 43 or 5 CFR part 430) of less 
than ``Fully Successful'' or equivalent, if the employee fails to 
maintain residency in the new geographic area for the duration of the 
service agreement, or if the employee otherwise fails to fulfill the 
terms of the service agreement.
* * * * *
    12. In Sec.  575.213, revise paragraph (b) introductory text to 
read as follows:


Sec.  575.213  Records and reports.

* * * * *
    (b) OPM may require that each agency submit an annual written 
report to OPM on the use of the relocation incentive authority within 
the agency during the previous calendar year. OPM may exempt an agency 
(or part of an agency) from all or any part of any reporting 
requirement established under this section if OPM has determined that 
the relocation incentive data submitted to OPM's central data systems 
under 5 CFR 9.2 is accurate and sufficient. Each agency report that is 
required must include--
* * * * *


Sec.  575.214  [Removed]

    13. Remove Sec.  575.214.

Subpart C--Retention Incentives

    14. In Sec.  575.304--
    a. Revise paragraph (d)(1);
    b. Remove ``or'' at the end of paragraph (d)(2);
    c. Remove the period at the end of paragraph (d)(3) and add ``; 
or'' in its place; and
    d. Add paragraph (d)(4).
    The revision and addition read as follows:


Sec.  575.304  Ineligible categories of employees.

* * * * *
    (d) * * *
    (1) To which an individual is appointed by the President without 
the advice and consent of the Senate, except a Senior Executive Service 
position in which the individual serves as a career appointee (as 
defined in 5 U.S.C. 3132(a)(4));
* * * * *
    (4) To which an individual is appointed as a Senior Executive 
Service limited term appointee or limited emergency appointee (as 
defined in 5 U.S.C. 3132(a)(5) and (a)(6), respectively) when the 
appointment must be cleared through the White House Office of 
Presidential Personnel.
    15. In Sec.  575.305, revise paragraph (c) to read as follows:


Sec.  575.305  Applicability to employees.

* * * * *
    (c) An agency may not include in a group retention incentive 
authorization an employee covered by Sec.  575.303(a)(2), (a)(3), or 
(a)(5) or those in similar categories of positions approved by OPM to 
receive retention incentives under Sec.  575.303(a)(7).
* * * * *
    16. In Sec.  575.306, redesignate paragraphs (b)(2) through (8) as 
paragraphs (b)(3) through (9), respectively, and add a new paragraph 
(b)(2) to read as follows:


Sec.  575.306  Authorizing a retention incentive.

* * * * *
    (b) * * *
    (2) The quality and availability of the potential sources of 
employees that are identified in the agency's succession plan, who 
possess the competencies required for the position, and who, with 
minimal training, cost, and disruption of service to the public, could 
perform the full range of duties and responsibilities of the employee's 
position at the level performed by the employee;
* * * * *
    17. In Sec.  575.311, redesignate paragraphs (a)(1) and ((2) as 
paragraphs (a)(2) and (3), respectively, and add a new paragraph (a)(1) 
to read as follows:


Sec.  575.311  Continuation, reduction, and termination of retention 
incentives.

    (a)(1) For each retention incentive that is subject to a service 
agreement, an authorized agency official must review the determination 
to pay a retention incentive at least annually to determine whether the 
original determination still applies or whether payment is still 
warranted as provided in paragraph (a)(2) of this section, and must 
certify this determination in writing.
* * * * *
    18. In Sec.  575.313, revise paragraph (b) introductory text to 
read as follows:


Sec.  575.313  Records and reports.

* * * * *
    (b) OPM may require that each agency submit an annual written 
report to OPM on the use of the retention incentive authority within 
the agency during the previous calendar year. OPM may exempt an agency 
(or part of an agency) from all or any part of any reporting 
requirement established under this section if OPM has determined that 
the retention incentive data submitted to OPM's central data systems 
under 5 CFR 9.2 is accurate and sufficient. Each agency report that is 
required must include--
* * * * *


Sec.  575.314  [Removed]

    19. Remove Sec.  575.314.


Sec.  575.315  [Redesignated as Sec.  575.314]

    20. Redesignate Sec.  575.315 as Sec.  575.314.


Sec.  575.314  [Amended]

    21. In newly redesignated Sec.  575.314:
    a. Redesignate paragraph (i)(1) as paragraph (i) introductory text;
    b. Remove paragraph (i)(2); and
    c. Redesignate paragraphs (i)(1)(i) through (i)(1)(v) as paragraphs 
(i)(1) through (i)(5),

[FR Doc. 2011-111 Filed 1-6-11; 8:45 am]
BILLING CODE 6325-39-P