Pay Under The General Schedule; Within-Grade Increases

SUMMARY: The Office of Personnel Management is issuing final

regulations relating to the interim relief provisions authorized under

the Whistleblower Protection Act of 1989. The final regulations provide

that an interim within-grade increase must be made effective on the

date of the appellate decision ordering interim relief.

EFFECTIVE DATE: January 20, 1995.

FOR FURTHER INFORMATION CONTACT:

Vincent Donahue, (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 existence at that time in 5 CFR 531.414(b)

provided that ``an interim within-grade increase granted under

paragraph (a) of that 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 were not persuaded

that this regulation was inconsistent with the spirit and purpose of

the WPA, we recognized that the interpretation reflected in MSPB's

recent decision is a plausible reading of the law. Further, we did not

wish to create undue difficulty for agencies that are required to

provide interim relief under the WPA. Therefore, OPM issued interim

regulations on May 10, 1994 (59 FR 24029), that modified the existing

regulations on interim within-grade increases to be consistent with

MSPB's decision.

Comments on the Interim Regulations

We received one comment on the interim regulations from a Federal

agency. The agency observed that, since the interim regulations provide

that an interim within-grade increase will become effective on the date

of the appellate decision ordering interim relief under 5 U.S.C.

7701(b)(2)(A) rather than the first day of the first pay period

beginning on or after the date of the favorable within-grade increase

determination, it would be consistent for any final decision by MSPB

upholding the negative within-grade increase determination to become

effective also on the date of the decision. The agency suggests

revising 5 CFR 531.414(c) to reflect such a change. We agree, and we

are adopting this recommendation.

Conforming Change in Part 772

Because the effective date of an interim within-grade increase is

being changed in these final regulations, a necessary conforming change

in 5 CFR 772.102(a) is needed. The reference to interim within-grade

increases as an exception to the general rule about when interim

personnel actions are to be made effective is deleted.

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

5 CFR Part 531

Government employees, Law enforcement officers, Wages.

5 CFR Part 772

Government employees, Health insurance, Life insurance, Retirement,

Whistleblowing.

U.S. Office of Personnel Management.

James B. King,

Director.

Accordingly, the interim rule amending 5 CFR part 531, which was

published at 59 FR 24029 on May 10, 1994, is adopted as final with the

following changes:

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 Pub. L. 103-

89, 107 Stat. 981; and E.O. 12748, 56 FR 4521, February 4, 1991, 3

CFR 1991 Comp., p. 316;

Subpart A also issued under 5 U.S.C. 5304, 5305, and 5553;

section 302 of the Federal Employees Pay Comparability Act of 1990

(FEPCA), Pub. L. 101-509 104 Stat. 1462; 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 5 U.S.C. 5304, 5305, and 5553;

sections 302 and 404 of FEPCA, Pub. L. 101-509, 104 Stat. 1462 and

1466; and section 3(7) of Pub. L. 102-378, 106 Stat. 1356;

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. 12833, 58 FR 63281, November 29, 1993, 3 CFR 1993 Comp., p.

682.

Subpart D--Within-Grade Increases

2. In Sec. 531.414, paragraph (c) is revised to read as follows:

Sec. 531.414 Interim within-grade increase.

* * * * *

(c) If the final decision of the Merit Systems Protection Board

upholds the negative within-grade increase determination, an interim

within-grade increase granted under this section shall be terminated on

the date of the Board's final decision.

* * * * *

PART 772--INTERIM RELIEF

3. The authority citation for part 772 continues to read as

follows:

Authority: 5 U.S.C. 1302, 3301, 3302, and 7301; Pub. L. 101-12.

Subpart A--General

4. In Sec. 772.102, paragraph (a) is revised to read as follows:

Sec. 772.102 Interim personnel actions.

* * * * *

(a) Interim personnel actions shall be made effective upon the date

of issuance of the initial decision and must be initiated on or before

the date of a petition for review by the agency or within a reasonable

period after the date it becomes aware of a petition for review by the

appellant;

* * * * *

[FR Doc. 94-31247 Filed 12-20-94; 8:45 am]

BILLING CODE 6325-01-M