[Federal Register Volume 78, Number 157 (Wednesday, August 14, 2013)]
[Rules and Regulations]
[Pages 49359-49364]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-19641]



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Rules and Regulations
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Federal Register / Vol. 78, No. 157 / Wednesday, August 14, 2013 / 
Rules and Regulations

[[Page 49359]]



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: Final rule.

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

SUMMARY: The U.S. Office of Personnel Management (OPM) is issuing final 
regulations to improve oversight of recruitment and retention incentive 
determinations; add succession planning to the list of factors that an 
agency must consider before approving a retention incentive, if 
applicable; and make additional minor clarifications and corrections.

DATES: Effective Date: September 13, 2013.

FOR FURTHER INFORMATION CONTACT: Tom Bustard by telephone at (202) 606-
2858; by fax at (202) 606-0824; or by email at pay-leave-policy@opm.gov.

SUPPLEMENTARY INFORMATION: On January 7, 2011, the U.S. Office of 
Personnel Management (OPM) published proposed regulations (76 FR 1096) 
on General Schedule pay and recruitment, relocation, and retention 
incentives (3Rs). The 60-day comment period for the proposed 
regulations ended March 8, 2011. During the comment period, OPM 
received 10 comments from individuals and agencies. A summary of the 
comments received and OPM's responses is provided below.

Recruitment Incentives

    OPM proposed revising the recruitment incentive regulations in 5 
CFR 575.105(b) to require that an agency review each decision to 
authorize a recruitment incentive for a group of similar positions at 
least annually to determine whether the positions are still likely to 
be difficult to fill. One agency recommended that OPM clarify what 
``similar positions'' means (e.g., same occupational series, 
interdisciplinary positions, title, or duties). We agree and are 
providing factors that may be used to define the targeted group in 
section 575.105(b) of the final regulations.
    OPM is also revising 5 CFR 575.109(c)(1) to clarify that an 
authorized agency official may request that OPM waive the 25 percent 
payment limitation for a group of employees (in addition to an 
individual employee) based on a critical agency need.

Relocation Incentives

    OPM received comments from five agencies regarding the proposal to 
require an employee to maintain residency in the new geographic area 
for the duration of the service agreement in order to receive 
relocation incentive payments. We also received a comment from an 
individual who agreed with the current regulations at 5 CFR 575.205(b) 
that require the employee to establish a residence in the new 
geographic area before the payment of a relocation incentive. The 
proposed regulations did not change the requirement that an employee 
establish a residence in the new geographic area and it has been 
retained in these final regulations.
    One agency commented that the proposed regulations would require an 
employee receiving a relocation incentive to maintain a residence 
within 50 miles of the new worksite. The agency was concerned that the 
proposed regulations would require the employee's incentive payment to 
be terminated if an employee chose to live outside of the 50-mile 
radius of the worksite. The agency suggested OPM provide agencies the 
authority to waive the requirement to maintain a residence in the new 
geographic area on a case-by-case basis.
    We believe the suggestion is unnecessary. The regulations did not 
propose requiring an employee to maintain a residence within 50 miles 
of his or her official worksite. The current regulations in 5 CFR 
575.205(b) allow the payment of a relocation incentive when an employee 
must relocate to accept a position at a worksite that is 50 or more 
miles from the worksite of the position held immediately before the 
move. The employee must establish a residence in the new geographic 
area before the agency may pay a relocation incentive to the employee. 
The 50-mile requirement pertains to the distance between the worksites 
and ensures the new position is in a different geographic area, as 
required by 5 U.S.C. 5753(b)(2)(B)(ii)(II). There is no regulatory 
requirement that the employee must establish or maintain a residence 
within 50 miles of the new official worksite. Under the new provision 
in 5 CFR 575.205(b), it is up to each agency to define the limits of 
the new geographic area in which the employee must maintain residency 
for the duration of the service agreement to continue receiving the 
relocation incentive. We are clarifying in 5 CFR 575.210(d) that 
agencies must define what constitutes the ``new geographic area'' in 
relocation incentive service agreements.
    The same agency asked for clarification on how agencies should 
handle employees who are moved outside of their geographic area as a 
result of a reorganization or transfer of function prior to the 
completion of the service period. The agency suggested the employees 
should continue to receive the relocation incentives if the move was 
management-driven and was not due to unacceptable performance or 
conduct.
    We disagree. As provided in 5 CFR 575.210(a), before paying a 
relocation incentive, an agency must require the employee to sign a 
written service agreement to complete a specified period of employment 
with the agency (or successor agency in the event of a transfer of 
function) at the new duty station. If the employee's position is 
transferred to a worksite outside of the duty station specified in the 
service agreement, the employee would not be able to fulfill the terms 
of the service agreement and the agency must terminate the service 
agreement. The termination provisions in 5 CFR 575.211(e) apply if such 
moves are a result of a management action under 5 CFR 575.211(a) and 
the employee would be able to keep any incentive payments already 
received. If the move is to a worksite that is 50 or more miles from 
the current worksite and the employee must establish a residence in the 
new geographic area, the agency could authorize a new relocation 
incentive if

[[Page 49360]]

the position would otherwise be difficult to fill. (If an employee who 
is receiving a relocation incentive is in a position that is subject to 
a transfer of function, but is not transferring to a different 
worksite, the employee could continue to receive the relocation 
incentive, depending on the specific terms of the service agreement.)
    Another agency questioned what the proposed requirement about 
maintaining a residence in the new geographic location would 
accomplish. The agency claimed the objective of paying a relocation 
incentive is to fill a position that is likely to be difficult to fill 
without an incentive. The objective has been met as long as the 
employee continues to serve satisfactorily in the position for which 
the relocation incentive is being paid. The agency also noted that the 
current regulations allow agencies to include any other terms or 
conditions in the service agreement, such as a requirement to maintain 
a residence in the new area for the entire service agreement period.
    We agree that the current regulations provide agencies with the 
flexibility to include terms in its service agreements that require 
employees to maintain a residence in the new geographic area. However, 
the purpose of this addition is to further clarify the intent of the 
law (5 U.S.C. 5753(b)(2)(B)(ii)(II)) to ensure the employee must 
relocate to accept the position. For example, if an employee 
established a residence in a new geographic location in order to 
receive a relocation incentive for a position, and shortly after moved 
back to his or her residence held prior to the relocation and commuted 
to the new worksite from there, it is apparent the employee did not 
need to relocate to accept the position.
    Three agencies and an individual asked OPM to define or provide 
guidance on the terms ``establish a residence'' or ``maintain a 
residence.'' One agency recommended that OPM require employees to 
provide proof of residency in the new geographic area.
    We are not defining ``establish a residence'' or ``maintain a 
residence'' in these final regulations. The meaning of these terms and 
the documentation needed to prove residency may vary based on agency 
policies for using relocation incentives. For example, some agencies 
may allow for the payment of relocation incentives for a short-term or 
temporary position change to a worksite in a different geographic area. 
Other agencies may reserve the use of relocation incentives for 
permanent geographic moves. Both situations are allowed under the 
regulations, which provide agencies the flexibility to establish 
policies for residency criteria and proof to address varying program 
needs. An agency may not approve a relocation incentive unless it can 
document in writing that the employee established a residence in the 
new geographic area; thus, the regulations already require agencies to 
secure proof of residency from the employee. (See 5 CFR 
575.208(a)(1)(iv).)
    Another agency explained that some of its employees relocate 
several times during the course of their careers but maintain a 
permanent residence where they have family. In many cases, these 
employees relocate for work but leave family behind, similar to 
military members assigned to several tours of duty at different 
locations, but who return home eventually. If an employee lives in a 
particular location for a particular length of time (as required by the 
service agreement) the agency considers this to meet the requirement of 
maintaining residency. The agency recommends that OPM revise the 
language in the proposed regulation to reflect that employees must 
relocate their permanent residence to the new geographic area for the 
duration of the service agreement unless OPM agrees that an employee 
can maintain a permanent residence and a temporary residence while 
receiving a relocation incentive.
    A revision to the regulations is not needed, as the phrase 
``maintain residency'' does not require a change in the employee's 
primary residence. The agency is correct that, while an employee must 
relocate to the new geographic area, the relocation incentive 
regulations do not require the employee to change his or her primary 
residence; that is, the employee does not necessarily have to 
physically move his or her family, household, goods, etc., from the 
``old'' geographic area. If the employee does not change his or her 
primary residence upon taking a position in a different geographic 
area, the employee must establish a temporary or second residence 
(e.g., rent an apartment) in the ``new'' geographic area in order to 
receive a relocation incentive.
    Because of the comments we received on establishing and maintaining 
a residence, we plan to provide further guidance on this issue outside 
of the regulations. We encourage agencies to incorporate the guidance 
OPM provides regarding these issues, including residency criteria and 
proof, in their own relocation incentive plans, as applicable.
    An agency suggested that if OPM made its proposed relocation 
incentive change final, agencies will need to revise their service 
agreements. OPM expects that agencies will include the change in any 
service agreements that are effective after the effective date of the 
final regulations.

Retention Incentives

General

    One individual recommended terminating all retention incentives to 
reduce the size of the Federal Government. We are not adopting this 
recommendation. OPM has delegated to agencies the authority to 
authorize retention incentives to help strategically address its 
critical workforce needs. Under 5 CFR 575.311, an agency may terminate 
a retention incentive at any time based solely on management needs of 
the agency, even if the conditions giving rise to the original 
determination to pay the incentive still exist. In addition, OPM and 
the Office of Management and Budget (OMB) have asked agencies to limit 
their spending on the 3Rs in the current fiscal environment. In a June 
10, 2011, memorandum, OPM and OMB asked agencies to ensure that 
spending on the 3Rs in calendar year 2011 and calendar year 2012, 
respectively, does not exceed calendar year 2010 levels. (See the 
memorandum at http://www.chcoc.gov/transmittals/TransmittalDetails.aspx?TransmittalID=3997 for additional information.) 
OMB continued these spending limitations in an April 4, 2013, 
memorandum. (See http://www.whitehouse.gov/sites/default/files/omb/memoranda/2013/m-13-11.pdf for additional information.)

Succession Planning

    One agency recommended that OPM include information in the text of 
revised section 575.306(b)(2) of the final regulations that was in the 
supplementary information for the proposed regulations on how 
succession planning applies to leadership positions. Also, the agency 
was concerned that OPM would be removing the current section 
575.306(b)(2). The agency stated the current section spoke to workforce 
planning in a very general sense and would serve to cover positions not 
included in agency succession planning efforts. The agency believes 
current paragraph (b)(2) should be retained and a more specific 
reference to workforce planning should be included in the regulations. 
It is the agency's view that there is a distinction between succession 
planning for leadership positions and workforce planning for non-
leadership positions.
    The current paragraph (b)(2) would not be removed; rather, it is 
being

[[Page 49361]]

redesignated as paragraph (b)(3) in these final regulations. Also, we 
are not amending the regulations as suggested because succession 
planning can apply to non-leadership positions. We are clarifying that 
succession plans for leadership positions are one type of succession 
plan.
    The same agency was also concerned the succession planning 
requirement would be difficult to apply to some of its more hard-to-
fill and highly-specialized positions. The agency stated that there is 
not a robust cadre of employees from which to choose in many 
situations. The agency hopes this situation would be taken into 
account, given the phrasing of the proposed regulations at 5 CFR 
575.306(b)(2). We agree. The introductory text of section 575.306(b) 
remains unchanged in these regulations; it requires simply that the 
agency ``consider . . . as applicable in the case at hand'' the quality 
and availability of the potential sources of employees that are 
identified in the agency's succession plan before authorizing a 
retention incentive.

Administration and Oversight of Recruitment, Relocation, and Retention 
Incentives

    One individual recommended OPM determine which occupations meet the 
criteria for the 3Rs (i.e., likely to be difficult to fill or likely to 
leave the Federal service) to prevent the misuse of 3Rs. The individual 
suggested OPM base its determination on employee qualifications, agency 
needs, and recruitment and retention efforts. The individual was 
particularly concerned about agencies paying a retention incentive to 
an employee who is not critical to an agency mission or is not likely 
to leave for a different position.
    We are not adopting this recommendation. Agencies have many 
different missions, and mission-critical occupations vary across the 
Government. They would likely change over time, based on changing 
agency needs, and it is not feasible for OPM to identify these 
positions by regulation. Agencies may list mission-critical occupations 
in their 3Rs plans. Even if an employee is in an identified mission-
critical occupation, an agency must confirm the employee is eligible 
for a recruitment, relocation, or retention incentive under 5 CFR 
575.106(b), 575.206(b), or 575.306(b) and provide the appropriate 
written determination before approving the incentive. If agencies 
discover incentives paid in violation of the law and regulations, they 
are responsible for correcting the personnel action to ensure 
compliance. (See internal monitoring requirements in 5 CFR 575.112, 
575.212, and 575.312.) These final regulations add increased oversight 
of retention incentives by requiring that all retention incentive 
authorizations are reviewed at least annually to ensure they are still 
warranted and, if the original determination to pay an incentive no 
longer exists, the retention incentive is terminated. (See 5 CFR 
575.311(a) and (f).)
    The same individual recommended that OPM direct the Government 
Accountability Office (GAO) to conduct periodic audits of agencies to 
evaluate their compliance with the regulations. OPM has no authority to 
direct GAO to conduct periodic audits of agencies' use of the 3Rs; 
rather, that authority lies with Congress. However, OPM provides 
oversight by periodically conducting two types of evaluations--human 
capital management evaluations and delegated examining reviews--and 
participating in agency-led evaluations. As part of these evaluations, 
OPM reviews an agency's 3Rs incentive plans, including designation of 
the proper approval authority, documentation of individual incentive 
decisions, and agency 3Rs incentive data for compliance with applicable 
regulations. OPM may require corrective actions or revoke an agency's 
3Rs authority if the agency fails to comply with applicable laws and 
regulations. (See 5 CFR 575.112, 575.212, and 575.312.)
    The same individual also commented that the documentation 
requirements for retention incentives need to be tightened up. The 
individual claimed there is no requirement for an individual to present 
a valid private-sector job offer. For example, an employee only needs 
to convince his or her boss that one has been proffered and there is no 
requirement for maintaining this documentation that is consistent 
throughout the Federal Government.
    We have purposefully left it up to each agency to determine its own 
requirements for documenting that an employee is likely to leave 
Federal employment. Employees may leave the Federal service for reasons 
other than private-sector employment, such as retirement or personal 
reasons. Agencies may, in their agency retention incentive plans, 
require documentation of private-sector job offers or other relevant 
documentation.
    The same individual also commented that OPM should have processes 
in place regarding recovery of 3Rs payments made to individuals who 
fail to provide required documentation. We did not amend the 
regulations in response to this comment. The regulations already 
require that documentation must be verified prior to the payment of a 
recruitment, relocation, or retention incentive (see 5 CFR 575.108, 
575.208, and 575.308). OPM also requires the repayment of all 
recruitment incentives that were earned as a result of material false 
or inaccurate statements, deception, or fraud (see 5 CFR 575.111(j)). 
Also, under 5 CFR 575.111(b), 575.211(b), and 575.311(b), an authorized 
agency official must terminate a recruitment, relocation, or retention 
incentive service agreement if an employee is demoted or separated for 
cause, if the employee receives a rating of record of less than ``fully 
successful'' or equivalent, or if the employee otherwise fails to 
fulfill the terms of the service agreement. Additionally, an authorized 
agency official may terminate a recruitment, relocation, or retention 
incentive based solely on management needs of the agency (5 CFR 
575.111(a), 5 CFR 575.211(a), 5 CFR 575.311(a)(2)).

Reports

    An agency and an individual commented on the reporting requirements 
for recruitment, relocation, and retention incentives. The individual 
recommended that OPM establish procedures for agencies to report the 
status of 3Rs quarterly or annually and publish the results for public 
viewing. The individual stated this would increase transparency and 
would help the agencies police themselves. The agency requested that 
OPM provide additional information regarding the payroll and nature of 
action code data elements used to verify the Governmentwide 3Rs data. 
The agency said that knowledge of these data elements would enable 
agencies to report accurate data to their payroll providers and the 
Enterprise Human Resources Integration (EHRI) system.
    We did not revise the regulations in response to these comments. 
However, we are removing duplicative reporting requirements. OPM was 
required by law to submit an annual report to Congress on agencies' use 
of 3Rs in calendar years 2005-2009, available online at http://www.opm.gov/policy-data-oversight/pay-leave/recruitment-relocation-retention-incentives/#url=Memos-Reports. The proposed regulations 
removed this reporting requirement, but provided that OPM may require 
that each agency submit a report to OPM on its use of incentives in the 
previous calendar year to support continued monitoring of agency 
incentive use. We are not including this proposed discretionary 
reporting requirement in the final regulations consistent with 
Executive Order 13583 of August 18,

[[Page 49362]]

2011, entitled ``Establishing a Coordinated Government-Wide Initiative 
to Promote Diversity and Inclusion in the Federal Workforce''. This 
Executive order included a requirement that OPM review directives to 
agencies related to agency human capital and other workforce plans and 
reports and develop a strategy for consolidating them. After further 
review, we have determined that a new 3Rs reporting requirement is 
unnecessary to support continued monitoring of incentive use. Agencies 
are already required to monitor incentive use under Sec. Sec.  575.112, 
575.212, and 575.312; make 3Rs records available for review upon OPM's 
request under Sec. Sec.  575.113, 575.213, and 575.313; and report 3Rs 
information to OPM central data systems following the standards issued 
under 5 CFR 9.2. They also may post public information on incentive use 
at their discretion. Agencies can find instructions for processing 3Rs 
in chapter 29 of the Guide to Processing Personnel Actions and 
information on 3Rs payroll data elements in part B of the Guide to Data 
Standards. These Guides are available on OPM's Web site.
    An individual commented that the focus of the regulations should be 
expanded to include other types of retention tools--for example, merit 
awards, having a comfortable and healthy working environment, and 
flexibility to work across bureau lines. OPM agrees that there are 
alternatives to paying employees retention incentives, as described in 
5 CFR 575.306(b)(4). However, these regulations are narrow in focus 
because they implement the retention incentive law in 5 U.S.C. 5754.

Employee Eligibility

    The proposed regulations clarified employee eligibility for 
recruitment incentives and having pay set using the General Schedule 
superior qualifications and special needs pay-setting authority. An 
agency asked OPM to clarify employee eligibility for use of the 
superior qualifications and special needs pay-setting authority in the 
proposed 5 CFR 531.212(a). The agency asked for confirmation that an 
employee converting from a temporary Schedule C appointment to a 
regular Schedule C appointment would be precluded from the use of the 
superior qualifications and special needs pay-setting authority unless 
there was a 90-day break in service, but a 90-day break in service 
would not be required when converting from a 30-day special needs 
appointment under 5 CFR 213.3102(i)(2) (a Schedule A appointment) to a 
Schedule C appointment. This is correct. However, the agency's 
recommendation to revise 5 CFR 531.212(a)(5)(iii) to read ``a position 
excepted from the competitive service . . . other than a temporary 
Schedule C position established under 5 CFR 213.3302'' is not correct. 
A 90-day break in service is required when the previous employment was 
a Schedule C appointment, regardless of whether the appointment was 
temporary. We did not revise the regulations in response to these 
comments.

Executive Order 13563 and Executive Order 12866

    The Office of Management and Budget has reviewed this rule in 
accordance with E.O. 13563 and 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
Elaine Kaplan,
Acting Director.

    Accordingly, OPM is amending 5 CFR parts 531 and 575 as follows:

PART 531--PAY UNDER THE GENERAL SCHEDULE

0
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

0
2. In Sec.  531.212--
0
a. Amend paragraph (a)(1)(ii) to remove the word ``and'' and add in its 
place ``or'';
0
b. Revise paragraph (a)(3); and
0
c. Add a new 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 an Internship Program appointment under Sec.  
213.3402(a) of this chapter ; 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;
    (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

[[Page 49363]]

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

0
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

0
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 
Sec.  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 an Internship Program appointment under Sec.  
213.3402(a) of this chapter; 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).
* * * * *

0
5. In Sec.  575.104--
0
a. Revise paragraph (d)(1);
0
b. Remove ``or'' at the end of paragraph (d)(2);
0
c. Remove the period at the end of paragraph (d)(3) and add a semicolon 
and ``or'' in its place; and
0
d. Add a new 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.

0
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 define a targeted category of positions using 
factors that relate to the conditions described in Sec.  575.106(b). 
Factors that may be appropriate include the following: occupational 
series, grade level, distinctive job duties, unique competencies 
required for the positions, and geographic location.
    (3) 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.
* * * * *

0
7. In Sec.  575.109, revise paragraph (c)(1) to read as follows:


Sec.  575.109  Payment of recruitment incentives.

* * * * *
    (c)(1) An authorized agency official may request that OPM waive the 
limitation in paragraph (b)(1) of this section for an employee or group 
of employees based on a critical agency need. The authorized agency 
official must determine that the competencies required for the 
position(s) are critical to the successful accomplishment of an 
important agency mission, project, or initiative (e.g., programs or 
projects related to a national emergency or implementing a new law or 
critical management initiative). Under such a waiver, the total amount 
of recruitment incentive payments paid to an employee in a service 
period may not exceed 50 percent of the employee's annual rate of basic 
pay at the beginning of the service period multiplied by the number of 
years (including fractions of a year) in the service period. However, 
in no event may a waiver provide total recruitment incentive payments 
exceeding 100 percent of the employee's annual rate of basic pay at the 
beginning of the service period.
* * * * *


Sec.  575.113  [Amended]

0
8. In Sec.  575.113, remove paragraph (b) and remove the paragraph (a) 
designation.


Sec.  575.114  [Removed]

0
9. Remove Sec.  575.114.

Subpart B--Relocation Incentives

0
10. In Sec.  575.204--
0
a. Revise paragraph (d)(1);
0
b. Remove ``or'' at the end of paragraph (d)(2);
0
c. Remove the period at the end of paragraph (d)(3) and add a semicolon 
and ``or'' in its place; and
0
d. Add a new 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

[[Page 49364]]

U.S.C. 3132(a)(5) and (a)(6), respectively) when the appointment must 
be cleared through the White House Office of Presidential Personnel.

0
11. In Sec.  575.205, add a new 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.
* * * * *
0
12. In Sec.  575.210, revise paragraph (d) to read as follows:


Sec.  575.210  Service agreement requirements.

* * * * *
    (d) The service agreement must include the conditions under which 
the agency must terminate the service agreement (i.e., if an employee 
is demoted or separated for cause, receives a rating of record of less 
than ``Fully Successful'' or equivalent, fails to maintain residency in 
the new geographic area for the duration of the service agreement, or 
otherwise fails to fulfill the terms of the service agreement) and the 
conditions under which the employee must repay a relocation incentive 
under Sec.  575.211. An agency must define the limits of the new 
geographic area in the service agreement for the purpose of determining 
whether an employee maintains residency in that geographic area for the 
duration of the service agreement.
* * * * *
0
13. 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 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.
* * * * *


Sec.  575.213  [Amended]

0
14. In Sec.  575.213, remove paragraph (b) and remove the paragraph (a) 
designation.


Sec.  575.214  [Removed]

0
15. Remove Sec.  575.214.

Subpart C--Retention Incentives

0
16. In Sec.  575.304--
0
a. Revise paragraph (d)(1);
0
b. Remove ``or'' at the end of paragraph (d)(2);
0
c. Remove the period at the end of paragraph (d)(3) and add a semicolon 
and ``or'' in its place; and
0
d. Add a new 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.

0
17. 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).
* * * * *

0
18. In Sec.  575.306, redesignate paragraphs (b)(2) through (b)(8) as 
paragraphs (b)(3) through (b)(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 any agency succession plan (e.g., 
succession plans required for leadership positions), 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;
* * * * *

0
19. In Sec.  575.311, redesignate paragraphs (a)(1) and (a)(2) as 
paragraphs (a)(2) and (a)(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.
* * * * *


Sec.  575.313  [Amended]

0
20. In Sec.  575.313, remove paragraph (b) and remove the paragraph (a) 
designation.


Sec.  575.314  [Removed]

0
21. Remove Sec.  575.314.


Sec.  575.315  [Redesignated as Sec.  575.314]

0
22. Redesignate Sec.  575.315 as Sec.  575.314.

0
23. In the newly designated Sec.  575.314:
0
a. Remove paragraph (i)(2).
0
b. Redesignate paragraph (i)(1) introductory text and paragraphs 
(i)(1)(i) through (i)(1)(v) as paragraph (i) introductory text and 
paragraphs (i)(1) through (i)(5) respectively; and
0
c. Revise the redesignated paragraph (i) introductory text.
    The revision reads as follows:


Sec.  575.314  Retention incentives for employees likely to leave for a 
different position in the Federal service.

* * * * *
    (i) Records and reports. In addition to the recordkeeping 
requirements in Sec.  575.313, each agency must submit a written report 
to OPM by March 31 of each year on the use of retention incentives 
under this section. Each report must include--
* * * * *
[FR Doc. 2013-19641 Filed 8-13-13; 8:45 am]
BILLING CODE 6325-39-P