Special Pay Entitlements for Law Enforcement Officers

OFFICE OF PERSONNEL MANAGEMENT

5 CFR Parts 531, 532, 550, and 575

RIN 3206-AF84

Special Pay Entitlements for Law Enforcement Officers

AGENCY: Office of Personnel Management.

ACTION: Final rule.

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SUMMARY: The Office of Personnel Management (OPM), in conformance with

amendments to the Federal Employees Pay Comparability Act of 1990

(FEPCA) made by the Technical and Miscellaneous Civil Service

Amendments Act of 1992, is issuing final regulations to amend the

definition of ``law enforcement officer'' for certain pay purposes and

expand coverage of the special maximum limitation on relocation bonuses

for law enforcement officers to five additional categories of law

enforcement employees.

EFFECTIVE DATE: These final regulations are effective on April 13,

1994.

FOR FURTHER INFORMATION CONTACT:

Sharon Herzberg, (202) 606-1413.

SUPPLEMENTARY INFORMATION: On January 8, 1993, OPM published interim

regulations to implement certain provisions of the Technical and

Miscellaneous Civil Service Amendments Act of 1992 (Pub. L. 102-378,

October 2, 1992). These provisions include (1) an expanded definition

of ``law enforcement officer'' in section 5541 of title 5, United

States Code (with conforming amendments in 5 U.S.C. 4521, 5542, and

5547, and section 402 of FEPCA); (2) an amendment to section 404 of

FEPCA to provide OPM with the authority to determine the extent to

which a special pay adjustment for law enforcement officers may be paid

to an employee receiving a special salary rate under 5 U.S.C. 5305 or

similar provision of law; and (3) an amendment to section 405 of FEPCA

to extend application of the special maximum limitation on relocation

bonuses for law enforcement officers to the categories of law

enforcement employees listed in section 405 of FEPCA--i.e., Park Police

officers, Secret Service Uniformed Division officers, special agents in

the Diplomatic Security Service, and probation and pretrial services

officers.

The 60-day public comment period ended on March 9, 1993. Comments

were received from one Federal agency, one employee organization, and

one individual. These comments are summarized below.

Expanded Definition of ``Law Enforcement Officer''

An agency commented that the provisions in the technical amendments

to FEPCA providing special pay adjustments for supervisory and

administrative law enforcement employees who are not eligible for

special law enforcement retirement coverage are confusing and that the

criteria should be applied consistently across the board. These

provisions are in law, and OPM does not have the authority to change

them. The law provides four definitions of ``law enforcement officer''

for purposes of special pay adjustments that differ according to an

employee's retirement coverage and whether his or her position is or is

not supervisory or administrative.

An employee who meets the definition of ``law enforcement officer''

in section 5541(3) of title 5, United States Code, must also be subject

to the provisions of chapter 51 of title 5, United States Code

(Classification), in order to be entitled to a special pay adjustment

provided by section 404 of FEPCA. To meet the definition, an employee

must be a ``law enforcement officer'' who--

(1) Is subject to the Civil Service Retirement System (CSRS) or the

Federal Employees Retirement System (FERS), is in a primary

(nonsupervisory) or secondary (supervisory or administrative) law

enforcement position, and is actually covered by the corresponding

special law enforcement retirement provisions of CSRS or FERS;

(2) Is subject to (CSRS), is in a secondary (supervisory or

administrative) position that has been approved for law enforcement

retirement purposes, but is not eligible for law enforcement retirement

coverage;

(3) Is subject to FERS and, as in (2), is in an approved secondary

position, but is not eligible for law enforcement retirement coverage;

or

(4) Is not subject to either CSRS or FERS and is in a position that

OPM determines would satisfy one of the other three conditions cited

above.

In addition, an employee who has had law enforcement retirement

coverage granted retroactively for service while subject to 5 U.S.C.

chapter 51 is entitled to the special pay adjustment retroactively.

An agency commented that there is a lack of congruence between the

definitions of ``law enforcement officer'' under CSRS and FERS and that

the classification standards should provide specific guidance for

linking law enforcement duties to the definition of ``law enforcement

officer'' for retirement purposes. Questions that arise concerning law

enforcement duties for the purpose of determining an employee's

entitlement to these special pay adjustments must be handled within the

context of the technical amendments to FEPCA and law enforcement

retirement law and regulations. Such issues are not within the scope of

a classification standard. Adding a discussion of these issues to

classification standards would add unnecessarily to the complexity of

the standards without adding materially to the quality of information

already provided.

An employee organization commented that the definitions of ``law

enforcement officer'' in these regulations should provide guidance on

specific positions, job series, or duties. Such guidance is beyond the

scope of these regulations. The criteria for approval of a position as

a primary or secondary law enforcement position are in 5 CFR part 831,

subpart I, for employees subject to CSRS, and in 5 CFR part 842,

subpart H, for employees subject to FERS. Most employees who are

covered by law enforcement retirement provisions are criminal

investigators, Border Patrol Agents, Deputy U.S. Marshals, correctional

officers, or support personnel in correctional institutions who have

frequent and direct contact with inmates. Most Federal police officers

are not covered by law enforcement retirement provisions.

Basic Pay for Computation of Special Pay Adjustments

An agency commented that some of its attorneys and accountants are

on nationwide special rates under 5 U.S.C. 5305 that are not

specifically related to law enforcement duties. Some of these attorneys

and accountants have been granted retroactive coverage under the law

enforcement retirement provisions. The agency believes special pay

adjustments for LEO's should not be based on nationwide special rates

unless the special rates are directly related to law enforcement

duties.

The interim regulations for special pay entitlements for law

enforcement officers published on January 8, 1993, provided for

computation of special pay adjustments on the basis of a nationwide or

worldwide special salary rate under 5 U.S.C. 5305. Such a rate was

included in the definition of ``scheduled annual rate of pay'' in

Sec. 531.301 of title 5, Code of Federal Regulations.

In developing regulations for the implementation of locality-based

comparability payments under 5 U.S.C. 5304, OPM determined that a

special law enforcement adjusted rate of pay should not be based on a

nationwide or worldwide special salary rate under 5 U.S.C. 5305. The

final regulations for locality-based comparability payments published

on December 30, 1993, [58 FR 69169] removed special rates of pay under

5 U.S.C. 5305 from the definition of ``scheduled annual rate of pay''

in Sec. 531.301. It should be noted that special pay adjustments

continue to be based on the special rates for law enforcement officers

provided by section 403 of FEPCA. For law enforcement officers who were

receiving special pay adjustments on top of special rates under 5

U.S.C. 5305, the regulations established a continued rate of pay equal

to the rate received before this change became effective so that there

would be no loss in pay.

Miscellaneous

The Office of Management and Budget changed the title of the Boston

CMSA to the Boston-Worcester-Lawrence, MA-NH-ME-CT CMSA, effective on

June 30, 1993. (Although the title of the Boston CMSA changed, the

geographic coverage did not change). Also, section 628 of the Treasury,

Postal Service, and General Government Appropriations Act, 1994 (Pub.

L. 103-123, October 28, 1993), amended section 404 of FEPCA by striking

``Washington, DC-MD-VA Metropolitan Statistical Area'' and inserting in

its place ``Washington-Baltimore, DC-MD-VA-WV Consolidated Metropolitan

Statistical Area.'' This amendment became effective on October 28,

1993. Accordingly, OPM is revising the titles of the Boston and

Washington metropolitan statistical areas in paragraph (a) of the

definition of ``special pay adjustment area'' (Sec. 531.301) and in the

chart in Sec. 531.302(a).

An individual called OPM staff by telephone and pointed out that an

incorrect citation for the definition of ``law enforcement officer''

was used in 5 CFR 575.302. OPM is revising Sec. 575.302 to substitute

the correct reference.

OPM is taking this opportunity to make technical corrections to two

additional regulatory sections to conform with changes in law. The

Technical and Miscellaneous Civil Service Amendments Act of 1992 (Pub.

L. 102-378, October 2, 1992) revised the divisor for computing overtime

pay for certain prevailing rate employees (i.e., those employees whose

pay is fixed on either a monthly or annual basis) from 2,080 to 2,087.

The amendment became effective on the first day of the first pay period

beginning on or after October 2, 1992. OPM is revising 5 CFR 550.113

accordingly.

In addition, OPM is correcting erroneous citations in 5 CFR

531.205(a) (3) and (4) by removing the reference to ``5 U.S.C. 5305''

and inserting ``5 U.S.C. 5303.'' Prior to enactment of FEPCA, annual

adjustments to pay schedules were covered under section 5305 of title

5, United States Code. As a result of the FEPCA amendments, annual

adjustments are now covered under section 5303. The references in

Sec. 531.205(a) must be changed accordingly.

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 532

Administrative practices and procedures, Freedom of Information,

Government employees, Reporting and recordkeeping requirements, Wages.

5 CFR Part 550

Administrative practices and procedures, Claims, Government

employees, Wages.

5 CFR Part 575

Government employees, Wages.

U.S. Office of Personnel Management.

Lorraine A. Green,

Deputy Director.

Accordingly, the interim rule amending 5 CFR parts 531, 532, 550,

and 575, published at 58 FR 3199 on January 8, 1993, as amended by the

final rule published at 58 FR 69169 on December 30, 1993, is adopted as

final with the following additional changes:

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, 5338, and chapter 54; 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),

5402, 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.

Sec. 531.205 [Amended]

2. In Sec. 531.205, paragraphs (a)(3) and (4) are amended by

removing the reference ``5 U.S.C. 5305'' and inserting in its place ``5

U.S.C. 5303''.

3. In Sec. 531.301, under the definition of ``special pay

adjustment area,'' paragraphs (a) and (h) are revised to read as

follows:

Sec. 531.301 Definitions.

* * * * *

Special pay adjustment area * * *

(a) Boston-Worcester-Lawrence, MA-NH-ME-CTCMSA;

* * * * *

(h) Washington-Baltimore, DC-MD-VA-WV CMSA.

4. In Sec. 531.302, paragraph (a) is revised to read as follows:

Sec. 531.302 Determining special law enforcement adjusted rates of

pay.

(a) To determine the special law enforcement adjusted rate of pay,

the scheduled annual rate or pay for a law enforcement officer whose

official duty station is in one of the special pay adjustment areas

listed below shall be multiplied by the factor shown for that area:

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Special pay adjustment area Factor

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Boston-Worcester-Lawrence, MA-NH-ME-CT CMSA................... 1.16

Chicago-Gary-Kenosha, IL-IN-WI CMSA........................... 1.04

Los Angeles-Riverside-Orange County, CA CMSA.................. 1.16

New York-Northern New Jersey-Long Island, NY-NJ-CT-PA CMSA.... 1.16

Philadelphia-Wilmington-Atlantic City, PA-NJ-DE-MD CMSA....... 1.04

San Francisco-Oakland-San Jose, CA CMSA....................... 1.16

San Diego, CA MSA............................................. 1.08

Washington-Baltimore, DC-MD-VA-WV CMSA........................ 1.04

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* * * * *

PART 550--PAY ADMINISTRATION (GENERAL)

1. The authority citation for subpart A of part 550 continues to

read as follows:

Authority: 5 U.S.C. 5304 note, 5305 note, 5541(2)(iv), 5548, and

6101(c); E.O. 12748, 3 CFR 1991 Comp., p. 316.

2. In Sec. 550.113, paragraphs (d) (1) and (2) are revised to read

as follows:

Sec. 550.113 Computation of overtime pay.

* * * * *

(d) * * *

(1) If the rate of basic pay of the employee is fixed on an annual

basis, divide the rate of basic pay by 2,087 and multiply the quotient

by one and one-half; and

(2) If the rate of basic pay of the employee is fixed on a monthly

basis, multiply the rate of basic pay by 12 to derive an annual rate of

basic pay, divide the annual rate of basic pay by 2,087, and multiply

the quotient by one and one-half.

* * * * *

PART 575--RECRUITMENT AND RELOCATION BONUSES; RETENTION ALLOWANCES;

SUPERVISORY DIFFERENTIALS

3. The authority citation for part 575 continues to read as

follows:

Authority: 5 U.S.C. 1104(a)(2), 5753, 5754, and 5755; sec. 302

and 404 of the Federal Employees Pay Comparability Act of 1990 (Pub.

L. 101-509), 104 Stat. 1462 and 1466, respectively; E.O. 12748, 56

FR 4521, February 4, 1991, 3 CFR 1991 Comp., p. 316.

4. In Sec. 575.302, paragraph (a)(4) is revised to read as follows:

Sec. 575.302 Delegation of authority.

(a) * * *

(4) A position as a law enforcement officer, as defined in

Sec. 550.103 of this chapter;

* * * * *

[FR Doc. 94-5785 Filed 3-11-94; 8:45 am]

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