Pay Under the General Schedule; Within-Grade Increases

OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 531

RIN 3206-AG04

Pay Under the General Schedule; Within-Grade Increases

AGENCY: Office of Personnel Management.

ACTION: Interim rule with request for comments.

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SUMMARY: The Office of Personnel Management is revising a regulation

relating to interim relief provisions authorized under the

Whistleblower Protection Act of 1989. The existing regulations on

interim within-grade increases are being modified to provide that an

interim within-grade increase must be made effective on the date of the

appellate decision ordering interim relief.

DATES: These interim regulations were effective on March 2, 1992.

Comments must be submitted on or before July 11, 1994.

ADDRESSES: Comments may be sent or delivered to Donald J. Winstead,

Acting Assistant Director for Compensation Policy, U.S. Office of

Personnel Management, room 6H31, 1900 E Street NW., Washington, DC

20415.

FOR FURTHER INFORMATION CONTACT:

James Weddel, (202) 606-2858.

SUPPLEMENTARY INFORMATION: The Office of Personnel Management (OPM)

published final regulations on interim relief under the Whistleblower

Protection Act of 1989 (WPA) (5 U.S.C. 7701(b)(2)(A)) in the Federal

Register on January 31, 1992 (57 FR 3707). The requirements for interim

within-grade increases in 5 CFR 531.414(b) provide that ``an interim

within-grade increase granted under paragraph (a) of this section shall

become effective on the first day of the first pay period beginning on

or after the date of the favorable within-grade increase

determination.''

However, the U.S. Merit Systems Protection Board (MSPB) issued a

decision on December 22, 1993 (Andrew W. Harrell v. Department of the

Army, AT-531D-93-0559-I-1), which stated that ``OPM's provision

contradicts the express language of 5 U.S.C. 7701(b)(2)(A), which

states that `the employee or applicant shall be granted the relief

provided in the decision effective upon the making of the decision'

(emphasis added). Accordingly, we find that the agency has failed to

provide evidence of complete relief, as ordered, and dismiss the

agency's petition for review.''

OPM's final regulation on the effective date of an interim within-

grade increase was intended to carry out the purpose of the statute

without creating an undue administrative burden for agencies and to be

consistent with longstanding requirements governing the effective date

of within-grade increases. OPM believed the regulation was consistent

with the spirit and purpose of the WPA. While we are not persuaded that

this regulation is inconsistent with the spirit and purpose of the WPA,

we recognize that the interpretation reflected in MSPB's recent

decision is a plausible reading of the law. Further, we do not wish to

create undue difficulty for agencies that are required to provide

interim relief under the WPA. Therefore, upon reconsideration, we have

determined that the effective date of an interim within-grade increase

must be the date of the appellate decision ordering interim relief

under 5 U.S.C. 7701(b)(2)(A).

Waiver of Delay in Effective Date

Pursuant to 5 U.S.C. 553(b)(3)(B), I find that good cause exists

for waiving the general notice of proposed rulemaking and making this

rule effective in less than 30 days. This regulation is being made

effective on March 2, 1992, the effective date of the final regulations

on interim relief (57 FR 3707), in order to be consistent with an

interpretation of law in a decision of the U.S. Merit Systems

Protection Board (Andrew W. Harrell v. Department of the Army, AT-531D-

93-0559-I-1, December 22, 1993).

Regulatory Flexibility Act

I certify that these regulations will not have a significant

economic impact on a substantial number of small entities because they

apply only to Federal agencies and employees.

List of Subjects in 5 CFR part 531

Government employees, Law enforcement officers, Wages.

U.S. Office of Personnel Management.

Lorraine A. Green,

Deputy Director.

Accordingly, OPM is amending part 531 of title 5, Code of Federal

Regulations, as follows:

PART 531--PAY UNDER THE GENERAL SCHEDULE

1. The authority citation for part 531 is revised to read as

follows:

Authority: 5 U.S.C. 5115, 5307, and 5338; sec. 4 of the

Performance Management and Recognition System Termination Act of

1993, 107 Stat. 981; E.O. 12748, 56 FR 4521, February 4, 1991, 3 CFR

1991 Comp., p. 316;

Subpart A also issued under section 302 of the Federal Employees

Pay Comparability Act of 1990 (FEPCA), 104 Stat. 1462, 5 U.S.C.

5304, 5305, and 5553, and E.O. 12786, 56 FR 67453, December 30,

1991, 3 CFR 1991 Comp., p. 376;

Subpart B also issued under 5 U.S.C. 5303(g), 5333, 5334(a), and

7701(b)(2);

Subpart C also issued under section 404 of FEPCA, 104 Stat.

1466, section 3(7) of Pub. L. 102-378 (October 2, 1992), section 302

of FEPCA, 104 Stat. 1462, and 5 U.S.C. 5304, 5305, and 5553;

Subpart D also issued under 5 U.S.C. 5335(g) and 7701(b)(2);

Subpart E also issued under 5 U.S.C. 5336;

Subpart F also issued under 5 U.S.C. 5304, 5305(g)(1), and 5553,

and E.O. 12883, 58 FR 63281, November 29, 1993, 3 CFR, 1993 Comp.,

p. 682.

Subpart D--Within-Grade Increases

3. In Sec. 531.412, paragraph (a) is revised to read as follows:

Sec. 531.412 Effective date of within-grade increase.

(a) Except as provided in paragraph (b) of this section, a within-

grade increase shall be effective on the first day of the first pay

period following completion of the required waiting period and in

compliance with the conditions of eligibility. Interim within-grade

increases shall become effective as provided in Sec. 541.414(b).

* * * * *

3. In Sec. 531.414, paragraph (b) is revised to read as follows:

Sec. 531.414 Interim within-grade increase.

* * * * *

(b) An interim within-grade increase granted under paragraph (a) of

this section shall become effective on the date of the appellate

decision ordering interim relief under 5 U.S.C. 7701(b)(2)(A).

* * * * *

[FR Doc. 94-11163 Filed 5-9-94; 8:45 am]

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